Kevin Michael Potts v. Commonwealth of Virginia

Tuesday 23rd

October, 2001.

Kevin Michael Potts, Appellant,

against Record No. 2854-99-1
Circuit Court No. CR99-1700

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray,
Annunziata, Bumgardner, Frank, Clements and Agee

Theresa B. Berry (Berry, Ermlich,
Lomax & Bennett, on brief), for
appellant.

H. Elizabeth Shaffer, Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for
appellee.

By opinion dated May 22, 2001, a divided panel of this

Court affirmed the judgment of the trial court. See Potts v.

Commonwealth, 35 Va. App. 485, 546 S.E.2d 229 (2001). We

granted rehearing en banc and stayed the mandate of that

decision.

Upon rehearing en banc, the stay of this Court's May

22, 2001 mandate is lifted, and the judgment of the trial court

is affirmed for the reasons set forth in the majority panel

decision.
 Chief Judge Fitzpatrick, Judges Benton, Elder and

Clements dissent for those reasons expressed in the dissenting

opinion of the panel. See id. at 497-505, 546 S.E.2d at 235-39.

It is ordered that the trial court allow counsel for

the appellant an additional fee of $200 for services rendered

the appellant on the rehearing portion of this appeal, in

addition to counsel's costs and necessary direct out-of-pocket

expenses. This amount shall be added to the costs due the

Commonwealth in the May 22, 2001 mandate.

This order shall be published and certified to the

trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 Tuesday 26th

June, 2001.

Kevin Michael Potts, Appellant,

against Record No. 2854-99-1
Circuit Court No. CR99-1700

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Clements and Agee

On June 5, 2001 came Kevin Michael Potts, the

appellant, by court-appointed counsel, and filed a petition

praying that the Court set aside the judgment rendered herein on

May 22, 2001, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on May 22, 2001

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

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the appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia

KEVIN MICHAEL POTTS
OPINION BY
v. Record No. 2854-99-1 JUDGE G. STEVEN AGEE
MAY 22, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge

Theresa B. Berry (Berry, Ermlich, Lomax &
Meixel, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

On December 30, 1998, the appellant, Kevin Michael Potts

(Potts), was arrested for the murder and conspiracy to commit the

murder of Troy Lee Wilson. After indictment and prior to trial, a

hearing was held July 23, 1999, upon Potts' motion to suppress his

December 30 confession to Wilson's murder. The trial court overruled

Potts' motion. On August 19, 1999, Potts entered a conditional

guilty plea in the Circuit Court of the City of Virginia Beach to

Wilson's murder, pursuant to a plea agreement reserving his right to

challenge the admission of his confession into evidence pursuant to

Code § 19.2-254 (the conspiracy charge being nolle prosequi). On

this appeal, Potts argues the trial court erred in not suppressing

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his confession, claiming it was made involuntarily. We disagree and

affirm the trial court's ruling and Potts' conviction.

I.

BACKGROUND

On the evening of December 9, 1998, Dawain Hopkins (Hopkins)

found himself unable to pay a debt owed to his cocaine supplier, Troy

Wilson (Wilson). To stall Wilson, Hopkins' friend, Kevin Potts,

paged Wilson and requested $40 of cocaine. Wilson and Potts agreed

to meet later that night at a secluded location.

At approximately 11:00 p.m., Potts arrived alone, planning to

kill Wilson. Upon Wilson's arrival, Potts distracted Wilson, causing

him to turn away from Potts. As Wilson turned, Potts stabbed him in

the back of the head. Wilson cried out and slumped to the ground,

the knife embedded in his skull.

Potts dragged the victim to nearby bushes, fled, but returned

almost immediately to find Wilson still alive. Potts spent the next

five minutes "having a conversation with [Wilson]," asking him such

questions as, "What happened to you? There's a knife in your head."

Afterwards, Potts took money and possessions belonging to Wilson and

attempted to further conceal the body, but was unable to retrieve the

knife embedded in Wilson's skull.

Potts returned the next day with a crowbar to recover the knife

and the cocaine Wilson had intended to sell him. Potts told Hopkins

what had happened, and the two returned to the crime scene. They dug

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a hole, buried the body and then threw the knife and some of Wilson's

possessions into a nearby lake.

On December 30, 1998, Detective Christopher C. Molleen of the

Virginia Beach Police Department learned that Potts was likely

involved in Wilson's disappearance. Hopkins had implicated Potts in

a statement made to another detective. That afternoon, Detective

Molleen arrested Potts in front of his mother's home and took him to

the police station. Upon arrival, Potts was placed in an interview

room, his handcuffs were removed, he was allowed to use the restroom

and offered something to drink.

Detective Molleen then entered the interview room, sat down,

opened a notebook and advised Potts of his Miranda rights by reading

from a printed card. The entire interview was recorded on videotape,

which is part of the record. The detective then asked Potts if he

understood his rights, and Potts said that he did.

At the time of the interview, Detective Molleen knew Potts was

seventeen years old and not attending school regularly. He also knew

Potts had previously been arrested on several minor charges

(destruction of property, petit larceny); however, Detective Molleen

did not know whether those arrests involved police interrogation.

Detective Molleen likely knew Potts' mother had made several demands

to other police officers that her son not be questioned without the

presence of an attorney.

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 Approximately a minute into the interview, Potts stated that he

wanted to speak with an attorney. The following exchange and events

are revealed on the videotape:

DETECTIVE: I think some things kind of got out
of hand a couple of weeks back, situation got out
control, maybe Dawain was in a little bit of
trouble with a particular person, maybe you tried
to help him out, it got out of hand, maybe
somebody got hurt as a result of it, does that
sound kind of familiar?

POTTS: I don't know. I want to talk to a
lawyer.

DETECTIVE: You want to talk to a lawyer.

POTTS: And can I contact my mom?

DETECTIVE: Nope.

POTTS: She can't talk to me?

DETECTIVE: Nope.

POTTS: Nope? What's up with the lawyer, then?

DETECTIVE: What's up with the lawyer? You'll
get one when you get one.

Detective Molleen, from the moment Potts stated he wanted to speak

with a lawyer until this point in the exchange, sat straight up in

his chair, turned his body and chair away from Potts toward the

table, wrote Potts' statement in his notes, set his pen down and

closed the notebook. Upon Potts' next question, the officer turned

his head to face Potts, but his body and chair remained facing the

table, with his writing hand and arm resting next to his closed

notebook and pen. Detective Molleen spoke in a conversational tone.

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 POTTS: What's that mean?

DETECTIVE: I can't put you on the phone to
contact one right now, 'cause they ain't workin'
right now. Okay? You're arrested, and you'll be
charged and we'll just go from there.

POTTS: Well fuck it, then, I don't want a damn
lawyer. What do you want to know?

DETECTIVE: Just the truth, Kevin, just the
truth. Things get out of control?

Potts then confessed that he had killed Wilson. About

forty-five seconds elapsed between Potts' request to "talk to a

lawyer" and his question, "What do you want to know?"

Approximately twenty-five minutes later, Detective Molleen

briefly left the room. Upon returning, Detective Molleen told Potts

he was going to advise him of his rights again. Potts answered, "I

know them." Detective Molleen said he understood that but again read

Potts his Miranda rights. The detective then asked Potts, "Do you

want to talk about this thing again?" Potts replied, "Sure." As

Detective Molleen took notes, Potts again confessed. At a later

break in the interview, while Potts was alone, he said out loud:

"I'm going jail for the rest of my life."

At the suppression hearing, Potts testified (1) that the night

before his arrest, he and Hopkins had smoked crack throughout the

night; (2) when they ran out of crack on the morning of the arrest,

they began smoking marijuana; and (3) the last time he had slept

prior to the arrest was two days before. However, Detective Molleen

testified that during the interview

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 [Potts a]ppeared to be fine. Didn't look like he
was intoxicated. I didn't smell alcohol. Didn't
look like he was on drugs. Coherent. We had a
good conversation, and he was articulate in his
answer.

Potts admitted he never told the detective during the interview that

he was either high on drugs or tired.

Potts testified that, "I had been informed of what my rights

were, but it doesn't necessarily mean that you know it [sic]." Potts

further testified that he interpreted Detective Molleen's statement,

"You'll get [an attorney] when you get one," to mean he did not have

a right to an attorney and he "assumed right off the fact that I

wasn't going to get one anytime."

Detective Molleen testified that he considered the interview

over the moment Potts stated he wanted to speak with an attorney, and

he prepared to leave the room. He explained that he told Potts he

could not speak with his mother at that time because

[t]here were many things I had to do with the
arrest procedures for him. Ultimately a couple
of hours down the road he was going to run into
her over at intake. It wasn't part of the
procedure, and at that time it wasn't that I
could work it in.

The detective testified that his statement, "You'll get one when

you get one," was not made in an attempt to elicit an incriminating

response from Potts. Rather, the statement reflects, "[I]t's not

part of the police department procedure for me to provide him with an

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attorney, and it's pretty much incumbent on his part to take care of

that arrangement."

II.

ANALYSIS

In reviewing a trial court's denial of a motion to suppress, we

view the evidence in the light most favorable to the Commonwealth as

the party that prevailed below, and grant to its evidence "all

reasonable inferences deducible therefrom." Giles v. Commonwealth,

28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998) (citations omitted).

In addition,

[a]lthough we review the trial court's findings
of historical fact only for "clear error," we
review de novo the trial court's application of
defined legal standards to the facts of the case.
Whether the defendant invoked his right or her
right to counsel, and thereafter knowingly and
voluntarily waived that right, requires that we
apply defined legal standards to the historical
facts.

Id. at 532-33, 597 S.E.2d at 105 (citations omitted).

In order for the confession of a criminal defendant in custody

to be admissible as evidence at trial, the police must advise the

defendant of the right to have counsel present during interrogation.

See Quinn v. Commonwealth, 25 Va. App. 702,

710-11, 492 S.E.2d 470, 474 (1997); see also Edwards v. Arizona, 451

U.S. 477, 485-86 (1981); Miranda v. Arizona, 384 U.S. 436, 469, 475

(1966). If the suspect invokes his right to counsel during

interrogation, "all police-initiated interrogation regarding any

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criminal investigation must cease . . . unless the Commonwealth

proves by a preponderance of the evidence that the defendant

voluntarily, knowingly, and intelligently waived his right to

retained or appointed counsel." Quinn, 25 Va. App. at 710-11, 492

S.E.2d at 474-75.

The United States Supreme Court in Edwards, 451 U.S. at 484-87,

adopted a three-part test to evaluate the admissibility of a

statement given after the right to counsel has been invoked.

First, the trial court must determine whether the
accused "unequivocally" invoked his or her right
to counsel. Second, the trial court must
determine whether the accused, rather than the
authorities, initiated further discussion or
meetings with the police. Third, if the accused
did initiate further discussions or conversations
with the police, the trial court must then
ascertain whether the accused knowingly and
intelligently waived the previously invoked right
to counsel.

Giles, 28 Va. App. at 532, 507 S.E.2d at 105 (citations omitted).

Without question, Potts unequivocally invoked his right to

counsel, so the first prong of the Edwards test is met. We must

determine (1) whether Potts initiated the further discussion with

police after he invoked his right to counsel and, if so, (2) whether

that discussion without legal counsel present was done voluntarily.

In regard to Edwards' second prong, it is clear from the record

that Potts initiated discussions with police after invoking his right

to counsel. In Edwards, the Supreme Court of the United States held

that

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 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.

451 U.S. at 484-85. Elaborating on this standard, the Court in

Oregon v. Bradshaw, 462 U.S. 1039 (1983), recognized that

[t]here are some inquiries, such as a request for
a drink of water or a request to use a telephone,
that are so routine that they cannot be fairly
said to represent a desire on the part of an
accused to open up a more generalized discussion
relating directly or indirectly to the
investigation. Such inquiries or statements, by
either an accused or a police officer, relating
to routine incidents of the custodial
relationship, will not generally "initiate" a
conversation in the sense in which that word was
used in Edwards.

Id. at 1045. However, the Court held that a custodial suspect's

question, "Well, what is going to happen to me now?," asked after the

request for counsel but prior to further interrogation by the

authorities, initiated further conversation, validating the suspect's

subsequent waiver of his Miranda rights. Id. at 1045-47.

Upon Potts' invocation of the right to counsel, Detective

Molleen wrote the statement, "I want to talk to a lawyer," in his

notes and closed the notebook. Detective Molleen then prepared to

leave the room when Potts asked the detective, "Can I contact my

mom?" This question and the detective's answer, as well as the

exchange following it, were permissible as "relating to routine

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incidents of the custodial relationship." Id. at 1045. These

inquiries alone would not constitute an initiation of conversations

with the police sufficient to waive the right to counsel.

However, after the detective answered Potts' procedural

questions, Potts unequivocally continued the conversation, waiving

his right to counsel when he told the detective, "[W]ell fuck it,

then, I don't want a damn lawyer. What do you want to know?" In

this case, Potts' waiver of his right to counsel was just as clear

and unequivocal as his prior assertion of it. Potts' statement and

inquiry plainly show a willingness to further discuss the detective's

investigation. The second prong of the Edwards admissibility test is

met.

As to the last prong of the Edwards test, Potts claims he was

subjected to coercive circumstances and, therefore, his waiver and

ensuing confession were involuntary. In assessing voluntariness, the

court must determine

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.'" Stockton v.
Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371,
381 (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 225 (1973)). In determining whether the
waiver was knowing and intelligent, the court
must examine the totality of the circumstances.
Fare v. Michael C., 442 U.S. 707, 717 (1979).
Where a juvenile is involved, "[t]his includes
evaluation of the juvenile's age, experience,
education, background, and intelligence, and
whether he has the capacity to understand the

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 warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving
those rights." Id. at 725; see also Green v.
Commonwealth, 223 Va. 706, 710, 292 S.E.2d 605,
607 (1982); Harris v. Commonwealth, 217 Va. 715,
719, 232 S.E.2d 751, 755 (1977); Grogg v.
Commonwealth, 6 Va. App. 598, 612, 371 S.E.2d
549, 556 (1988).

Roberts v. Commonwealth, 18 Va. App. 554, 557-58, 445 S.E.2d 709, 711

(1994).

In reviewing the totality of the circumstances in this case, the

trial court's ruling that Potts' confession was knowingly,

intelligently and voluntarily made is supported by the evidence.

While Potts was seventeen years old and perhaps a high school

dropout at the time of his arrest, he appears intelligent and

articulate. Detective Molleen testified that Potts appeared to be

fine and did not look high on drugs or sleep deprived. Detective

Molleen's impression is clearly supported by the videotape of the

interview, from which the trial court could reasonably find that

Potts' conversation was appropriate, his answers were responsive, he

did not have difficulty focusing on what was transpiring, and while

he cried on occasion, he remained calm.

Although "it is desirable to have a parent, counsel or some

other interested adult or guardian present when . . . a juvenile

waives fundamental constitutional rights and confesses to a serious

crime . . . , the mere absence of a parent or counsel does not render

the waiver invalid." Grogg, 6 Va. App. at 613, 371 S.E.2d at 557.

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The absence of a parent is but one factor to be considered in the

totality of the circumstances and is insufficient by itself to render

Potts' confession involuntary. Id.; see also Novak v. Commonwealth,

20 Va. App. 373, 387-88, 457 S.E.2d 402, 409 (1995) (absence of

parent at questioning of sixteen-year-old defendant insufficient to

preclude finding that confession was voluntary).

We find no support for the allegation of coercion. Potts was

questioned by one plainclothes detective in a room large enough for

him to get up and move around, and he wore no restraints. Cf. Grogg,

6 Va. App. at 614, 371 S.E.2d at 557 (questioning of juvenile

defendant, not in handcuffs, by three plainclothes officers was not

"coercive" environment). As Potts confirmed at the suppression

hearing, Detective Molleen never threatened him or told him to keep

talking once he had waived his rights.

At no time did Detective Molleen tell Potts that he could not

speak with an attorney; instead, Detective Molleen told Potts that he

could not provide him with one right then and that Potts would have

one when he arranged for one. As the Supreme Court of Virginia has

observed: "Miranda nowhere requires that a suspect be told he has

the right to immediate appointment of counsel. Indeed, language in

Miranda negates this very proposition." Poyner v. Commonwealth, 229

Va. 401, 409, 329 S.E.2d 815, 822, cert. denied, 474 U.S. 865 (1985).

Potts testified at the suppression hearing that while he was

read his rights, he did not necessarily understand them. He

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testified that he thought he would be able to go home if he talked to

the police. Assuming Potts mistakenly believed this, he also

admitted that Detective Molleen never threatened him, never

encouraged him to talk and never promised leniency or gave any other

inducements. Potts' mistake, therefore, was not the result of police

coercion, the necessary predicate for a finding that a confession is

involuntary. Bottenfield v. Commonwealth, 25 Va. App. 316, 323, 487

S.E.2d 883, 887 (1997) (citing Colorado v. Connelly, 479 U.S. 157,

167 (1986)).

Upon a review of the record and applicable law, we hold the

trial court could reasonably find that Potts' confession was properly

admissible under Edwards. Potts initiated the discussion with police

after invoking his right to counsel. The Potts initiated

conversation led to his subsequent confession without legal counsel

present and that confession was knowingly, intelligently and

voluntarily made.

The denial of the motion to suppress was proper, and the

conviction is, accordingly, affirmed.

Affirmed.

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Benton, J., dissenting.

I would hold that the trial judge admitted the juvenile's

statements in evidence in violation of the Fifth Amendment.

I.

One of the constitutional safeguards established by Miranda v.

Arizona, 384 U.S. 436 (1966), is the right of an accused person to

have an attorney present at a custodial interrogation and to end the

interrogation by invoking this right. Id. at 469, 474-75. See also

Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). The Supreme Court

has held that "the rigid rule [of Miranda means] that an accused's

request for an attorney is per se an invocation of his Fifth

Amendment rights." Fare v. Michael C., 442 U.S. 707, 719 (1979).

Thus, if, in violation of these rights, "the interrogation continues

without the presence of an attorney and a statement is taken, a heavy

burden rests on the government to demonstrate that the defendant

knowingly and intelligently waived his privilege against self-

incrimination and his right to retained or appointed counsel."

Miranda, 384 U.S. at 475 (citing Escobedo v. Illinois, 378 U.S. 478,

490 n.14 (1964)).

In order to "prevent police from badgering a
defendant into waiving his previously asserted
Miranda rights" and to "protect the suspect's
'desire to deal with the police only through
counsel,'" the United States Supreme Court
established the "Edwards rule" as a "second layer
of prophylaxis for the Miranda right to counsel."
Pursuant to Edwards and its progeny, once the

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 defendant invokes his Miranda right to counsel,
all police-initiated interrogation regarding any
criminal investigation must cease unless the
defendant's counsel is present at the time of
questioning. If the police initiate
interrogation of a defendant after he has invoked
his Miranda right to counsel and before his
counsel is present, "a valid waiver of this right
cannot be established . . . even if he has been
advised of his rights."
Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474

(1997) (citations omitted).

The Supreme Court has also explained "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, 451 U.S. at 484-85. The

rule in "Edwards focuses on the state of mind of the suspect and not

of the police." Arizona v. Roberson, 486 U.S. 675, 687 (1988).

Before Detective Molleen began interrogating Kevin Michael

Potts, who was seventeen years old and lived with his parents, he was

aware that Potts' mother had refused permission for the police to

interview Potts. The detective disregarded her express request.

After he read Miranda warnings to Potts, the following colloquy

occurred:

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 DET. MOLLEEN: I think some things kind of got
out of hand a couple of weeks back, situation got
out of control, maybe Dawain was in a little bit
of trouble with a particular person, maybe you
tried to help him out, it got out of hand, maybe
somebody got hurt as a result of it, does that
sound kind of familiar?
POTTS: I don't know. I want to talk to a
lawyer.
DET. MOLLEEN: You want to talk to a lawyer.
POTTS: And can I contact my mom?
DET. MOLLEEN: Nope.
POTTS: She can't talk to me?
DET. MOLLEEN: Nope.
POTTS: Nope? What's up with the lawyer, then?
DET. MOLLEEN: What's up with the lawyer? You'll
get one when you get one.
POTTS: What's that mean?
DET. MOLLEEN: I can't put you on the phone to
contact one right now, 'cause they ain't workin'
right now. Okay? You're arrested, and you'll be
charged and we'll just go from there.
POTTS: Well fuck it, then, I don't want a damn
lawyer. What do you want to know?
DET. MOLLEEN: Just the truth, Kevin, just the
truth. Things get out of control?
Potts unambiguously requested to speak to an attorney.

Mimicking Potts' request, the detective gave no indication that it

would be honored and, thus, effectively ignored that request. Potts

next asked to contact his mother, which was a rational way for a

juvenile to seek an adult's assistance in obtaining an attorney. If

we assume the detective intended to honor Potts' request for an

attorney, it would appear that the detective would have either

permitted Potts to contact his parents or told him when contact would

be permitted. Instead, by his blunt, terse refusal of Potts' request

to speak to his mother, an adult Potts trusted, the detective

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effectively and immediately denied Potts the right to an attorney.

By telling Potts, "you'll get [an attorney] when you get one," the

detective essentially communicated to Potts that he had to make those

arrangements himself. Indeed, the detective testified at the

hearing, "it's pretty much incumbent on his part to take care of that

arrangement." At no time did the detective indicate to Potts how his

right to an attorney would be honored or when. The detective's

statement, "you're arrested, and you'll be charged and we'll just go

from there," effectively communicated a rejection of Potts' request

for counsel.

"The concern of the Court in Miranda was that the 'interrogation

environment' created by the interplay of interrogation and custody

would 'subjugate the individual to the will of his examiner' and

thereby undermine the privilege against compulsory self-

incrimination." Rhode Island v. Innis, 446 U.S. 291, 299 (1980). As

the Court noted in Miranda: "If authorities conclude that they will

not provide counsel during a reasonable period of time in which

investigation . . . is carried out, they may refrain from doing so

without violating the person's Fifth Amendment privilege so long as

they do not question him during that time." 384 U.S. at 474.

Miranda and Edwards were intended to "dispel the compulsion inherent

in custodial surroundings." Id. at 458. We ignore reality if we

assume a juvenile, such as Potts, has the means, maturity, and

capability to secure on his or her own initiative, while confined in

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jail, an attorney to assist him or her. See Fare, 442 U.S. at 725

(including a juvenile's age in the determination whether a waiver

occurred).

In addition, the Supreme Court has expressly ruled that

"custodial interrogation for purposes of Miranda includes both

express questioning and words or action that . . . the officer knows

or reasonably should know are likely to 'have . . . the force of a

question on the accused,' and therefore be reasonably likely to

elicit an incriminating response." Pennsylvania v. Muniz, 496 U.S.

582, 601 (1990) (citation omitted). I believe the detective's

mimicking responses were designed to cause Potts to engage in

additional conversation. They had the effect of stimulating

conversation and were the functional equivalent of continuing

interrogation. The rule in Edwards was not intended to give the law

enforcement officers an opportunity to use interrogation tactics to

snare unwary teenagers into asking questions about the means to

effect their Miranda rights and then to use those inquiries as a

guise to blatantly disregard constitutionally required procedures.

When Potts asked to contact his mother, who was his obvious means of

securing an attorney, the detective curtly denied that request.

Following this denial, the detective's further mimicking statements,

"What's up with the lawyer? You'll get one when you get one,"

effectively refused to honor Potts' request. Seeking some

explanation about his means of contacting an attorney, which the

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detective's responses certainly made illusory, Potts was again

rebuffed by the detective's response that no attorneys were working.

This response only served, as did the others, to eliminate Potts'

options for obtaining an attorney.

The officer's technique manifestly raised the level of isolation

and hostility imposed on this juvenile by denying him even the most

basic assurance that his request for counsel would be honored.

Indeed, the detective never told Potts that the police would honor

his request for an attorney. His responses to Potts' inquiries about

an attorney conveyed the unmistakable message that the detective

considered Potts' request to be frivolous and that an attorney might

arrive some day "when [Potts arranged to] get one." Potts'

exasperated statement, "I don't want . . . a lawyer," was the

culmination of impermissible conduct by the detective. Thus, I would

hold that the detective's curt and mimicking responses constituted

badgering that was a continuation of the interrogation in violation

of Miranda. I would also hold that Potts' inquiries were "so routine

that they cannot be fairly said to represent a desire . . . to . . .

'initiate' a conversation in the sense in which that word was used in

Edwards." Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983).

II.

In addition to these violations of Miranda and Edwards, the

record establishes that the Commonwealth failed to prove Potts'

statements were voluntarily, knowingly, and intelligently made. See

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Miranda, 384 U.S. at 444. Even before Miranda, the Fifth Amendment

required that confessions be found voluntary before they could be

admitted as evidence. See Dickerson v. United States, 530 U.S. 428,

433 (2000). In making the determination whether a statement was

voluntarily, knowingly, and intelligently made, the trial judge must

examine the totality of the circumstances, including the

characteristics of the accused, and determine whether the accused's

will was overborne by the circumstances surrounding the giving of the

confession. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).

The ultimate test remains that which has been the
only clearly established test in Anglo-American
courts for two hundred years: the test of
voluntariness. Is the confession the product of
an essentially free and unconstrained choice by
its maker? If it is, if he has willed to
confess, it may be used against him. If it is
not, if his will has been overborne and his
capacity for self-determination critically
impaired, the use of his confession offends due
process.
Culombe v. Connecticut, 367 U.S. 568, 602 (1961). The Supreme Court

recently reaffirmed that it has "never abandoned this

. . . jurisprudence, and thus continue[s] to exclude confessions that

were obtained involuntarily." Dickerson, 530 U.S. at 434.

Even if we assume, contrary to the evidence, that Potts

initiated the conversation that led to the confession, the Supreme

Court has ruled as follows:

If, as frequently would occur in the course of
a meeting initiated by the accused, the
conversation is not wholly

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 one-sided, it is likely that the officers will
say or do something that clearly would be
"interrogation." In that event, the question
would be whether a valid waiver of the right to
counsel and the right to silence had occurred,
that is, whether the purported waiver was knowing
and intelligent and found to be so under the
totality of the circumstances, including the
necessary fact that the accused, not the police,
reopened the dialogue with the authorities.
Edwards, 451 U.S. at 486 n.9. Furthermore, the principle is also

well established that "even if a conversation taking place after the

accused has 'expressed his desire to deal with the police only

through counsel,' is initiated by the accused, 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." Bradshaw, 462 U.S.

at 1044. See also Michigan v. Jackson, 475 U.S. 625, 633 n.6 (1986)

(noting that the accused's request for counsel is "an extremely

important fact" in considering whether there was a valid subsequent

waiver of the right to counsel).

Noting that special problems exist with respect to waivers by

juveniles, the Supreme Court has ruled that "[i]f counsel was not

present for some permissible reason when an admission was obtained

[from a juvenile], the greatest care must be taken to assure that the

admission was voluntary, in the sense not only that it was not

coerced or suggested, but also that it was not the product of

ignorance of rights or of adolescent fantasy, fright or despair." In

re Gault, 387 U.S. 1, 55 (1967). See also Haley v. Ohio, 332 U.S.

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596, 599-600 (1948). Clearly, the detective who interrogated Potts

did not use "the greatest care" to ensure that Potts' "admission was

voluntary." Id. First, he ignored Potts' request for counsel. He

then flatly refused to allow Potts to consult with his parent, a

trusted adult who had the wherewithal to secure counsel for Potts,

and, indeed, who had requested the police not to question Potts in

her absence. As if to ensure that Potts would feel the coercive

nature of his detention, the officer next misrepresented to Potts

that no lawyer could be secured at that hour. Lastly, he told Potts

that the process would continue without informing Potts whether or

when he would have an attorney. In short, this officer conveyed to

Potts the unmistakable message that he was on his own in trying to

secure an attorney and in dealing with the police.

Recognizing again the special problems of juveniles, the Supreme

Court observed the following in a case where the juvenile failed to

ask for a lawyer or parent:

[The period] -- during which time the boy's
mother unsuccessfully tried to see him and he was
cut off from contact with any lawyer or adult
advisor -- gives the case an ominous cast. The
prosecution says that the boy was advised of his
right to counsel, but that he did not ask either
for a lawyer or for his parents. But a 14-year-
old boy, no matter how sophisticated, is unlikely
to have any conception of what will confront him
when he is made accessible only to the police.
That is to say, we deal with a person who is not
equal to the police in knowledge and
understanding of the consequences of the
questions and answers being recorded and who is
unable to know how to protect his own interests

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 or how to get the benefits of his constitutional
rights.
. . . He cannot be compared with an adult in
full possession of his senses and knowledgeable
of the consequences of his admissions. He would
have no way of knowing what the consequences of
his confession were without advice as to his
rights - from someone concerned with securing him
those rights - and without the aid of more mature
judgment as to the steps he should take in the
predicament in which he found himself. A lawyer
or an adult relative or friend could have given
the petitioner the protection which his own
immaturity could not. Adult advice would have
put him on a less unequal footing with his
interrogators. Without some adult protection
against this inequality, a 14-year-old boy would
not be able to know, let alone assert, such
constitutional rights as he had. To allow this
conviction to stand would, in effect, be to treat
him as if he had no constitutional rights.
Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962).

III.

In summary, the record in this case establishes that the

detective denied Potts' express request for counsel; he denied Potts'

explicit request to speak to his mother, which was an implicit

request for aid in the securing of his rights; and he refused those

requests in such a fashion that Potts was given the unmistakable

message that he had to fend for himself in dealing with the police.

I would hold that the record established a violation of Miranda, a

violation of Edwards, and a confession that was not voluntary,

knowing, or intelligent. Accordingly, I would hold that the trial

judge erred in refusing to suppress the confession, and I would

reverse the conviction and remand for a new trial.

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