COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
ANTHONY S. FORD
MEMORANDUM OPINION * BY
v. Record No. 0997-02-1 JUDGE ROBERT P. FRANK
FEBRUARY 19, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
Henry L. Sadler, III (Sadler & Nicholas, on
brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Anthony S. Ford (appellant) was convicted of robbery and use
of a firearm in the commission of a robbery after he conditionally
pled guilty to the indictments. On appeal, appellant claims the
trial court erred in denying his motion to suppress his statement
to the police. Finding no error, we affirm the trial court's
judgment.
BACKGROUND 1
During their investigation of a robbery in Norfolk,
Investigators Victor Powell and W.L. Garrison of the Norfolk
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Because the circumstances of the robbery are not relevant
to this opinion, we do not summarize those facts here.
Police Department obtained information that led them to speak with
appellant on April 27, 2001. At the time, appellant was in the
Hampton jail, held on felony charges pending in that city.
At the beginning of the interview, Powell and Garrison
informed appellant in general terms that they were investigating a
robbery in Norfolk. The officers reviewed a legal rights advice
form with appellant. In response to each of the first four
questions, which listed the Miranda rights,2 appellant answered
"yes," indicating he understood the right, and he initialed the
question. He initialed the fifth question, acknowledging that the
rights were "fully explained" to him and that he understood those
rights. In response to the sixth question, "I further state that
I waive these rights and desire to make a statement," appellant
answered "No." Appellant indicated "he didn't have anything to
say" to the officers. At that point, the investigators ended the
interview and left the interview room.
Investigator Powell testified appellant did not ask for
counsel during this interview. According to Powell, "He just said
that he didn't have anything to say to us." Describing his
"normal policy," Powell explained, once a suspect indicates he
understands his rights, but does "not wish to make a statement,
[does] not want to talk, then that's the end of the interview."
2
These rights are listed in Miranda v. Arizona, 384 U.S.
436 (1966).
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On May 1, 2001, arrest warrants for appellant were issued in the
Norfolk case.
Appellant remained in custody in Hampton, where an attorney
was appointed to represent him. During this time, Corporal
Curtis E. Cooper of the Hampton Police Department began talking to
appellant regarding several crimes in Hampton. Appellant
initiated all of the meetings with Cooper. Usually, appellant's
girlfriend contacted the corporal and asked for a meeting,
indicating appellant wanted to talk with the police. Once or
twice, appellant may have contacted Cooper directly and said he
wished to speak with him. On one occasion, both appellant's
girlfriend and his Hampton attorney attended the meeting. Only
once did appellant fail to confirm his girlfriend's representation
that he wished to speak with the Hampton police, and consequently
Cooper did not speak with appellant at that time. Otherwise,
appellant "was always ready to go over and talk."
During a conversation in May, appellant implicated his uncle,
Carollea Ford, in several Hampton robberies. Appellant also
indicated his uncle was involved in several Norfolk robberies,
including one involving a taxi driver. 3 Cooper contacted the
Norfolk robbery squad and relayed this information to a sergeant.
On June 7, 2001, Cooper and appellant met again at
appellant's request. Appellant offered more information on
3
The instant offense involved robbery of a taxi driver.
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Carollea Ford's involvement in the Norfolk robberies. Cooper
testified appellant did not request to have counsel present.
That same day, Powell and Garrison went to the Hampton Police
Department expecting to speak with Carollea Ford. According to
Powell, a Hampton officer had contacted him, indicating Carollea
Ford had agreed to speak with the Norfolk investigators about
several robberies. 4 Carollea Ford was under arrest in Hampton,
but he had been transferred from the Hampton jail to a regional
facility. Powell was "totally surprised" when he learned that
appellant was in the police interview room.
After realizing the confusion, Powell told Cooper that
appellant had indicated during an earlier meeting that he did not
want to speak with the Norfolk police. Cooper returned to the
interview room and spoke with appellant. Cooper "came back out
and told [Powell] that [appellant] was willing to talk . . . in
connection with his uncle's involvement in the Norfolk robberies."
Powell then entered the interview room and confirmed that
appellant would speak with him. Powell re-advised appellant of
the Miranda rights. Appellant signed and initialed the same
Miranda rights form, although this time he indicated he wanted to
waive those rights and make a statement. At no time did appellant
4
At trial, the officers from the various jurisdictions
speculated that the message left by Cooper might have been
misconstrued, giving Powell the impression that the uncle,
rather then appellant, had information pertinent to the
investigations.
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ask for counsel or indicate he did not want to speak to the
police. 5 Appellant then gave a taped statement about the Norfolk
robbery.
At the suppression hearing, appellant testified he asked for
counsel at both the April 27th and the June 7th interviews. He
also testified he did not initiate or agree to the June 7th
meeting with the Norfolk police.
The trial court denied the motion to suppress, making a
number of factual findings. The court found "credible evidence"
proved that "some confusion" caused Powell and Garrison to return
to Hampton on June 7, 2001, in the mistaken belief that they could
speak with Carollea Ford. After being informed appellant was the
person who wanted to speak with them, the Norfolk investigators
obtained appellant's acknowledgement that he indeed wished to
speak with them. The trial court further found appellant
initiated the June 7, 2001 interview with the Norfolk police. The
court concluded:
So, it's my determination that this
defendant did, in fact, initiate those
inquiries, and these detectives did, in
fact, readvise him of his rights as was
stated [in the legal rights advice form
dated June 7, 2001], and this defendant did,
in fact, freely and voluntarily and
intelligently give a taped statement to the
Norfolk Police Department.
5
The Norfolk investigators did not attempt to speak with
appellant's Hampton attorney, because their case was not "related
to anything that occurred in Hampton." They were unsure whether
appellant had Norfolk counsel at that time.
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The trial court did not clearly address whether appellant
initially asked for counsel. 6 However, after conducting an
Edwards v. Arizona, 451 U.S. 477 (1981), analysis, the trial
court concluded appellant did initiate the June 7 meeting with
the police.
ANALYSIS
Appellant argues he invoked his right to counsel at the
April 27 interview with the Norfolk detectives, thus preventing
police from re-initiating any discussion with him under the
principles established in Edwards. He contends, since he did
not initiate the second meeting with the Norfolk investigators,
the trial court should have suppressed the confession. The
Commonwealth argues appellant did not invoke his right to
counsel. Therefore, the Commonwealth need not prove appellant
initiated the June 7th interview. Alternatively, the
Commonwealth argues appellant did, in fact, initiate that
conversation. For the purposes of our analysis, we assume
without deciding that appellant invoked his right to counsel at
the April 27th interrogation.
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
6
At oral argument, appellant's counsel relied upon a
transcript of the suppression hearing that differed in some
respects from the transcript filed with this Court. As we can
consider only the official record sent to this Court, see Rules
5A:10, 5A:25(h), we do not address these differences.
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to its evidence "all reasonable inferences
deducible therefrom." Giles v.
Commonwealth, 28 Va. App. 527, 532, 507
S.E.2d 102, 105 (1998) (citation omitted).
In addition, we review the trial court's
findings of historical fact only for "clear
error," but we review de novo the trial
court's application of defined legal
standards to the particular facts of a case.
See Ford v. Commonwealth, 28 Va. App. 249,
255, 503 S.E.2d 803, 805 (1998); see also
Ornelas v. United States, 517 U.S. 690, 700
(1996).
Watts v. Commonwealth, 38 Va. App. 206, 213, 562 S.E.2d 699,
702-03 (2002).
When a defendant previously has invoked his right to have
an attorney present during questioning, the courts use a
three-part test to determine whether the Commonwealth has proven
a subsequent confession is admissible. See Quinn v.
Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997);
Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d 102, 105
(1998); Potts v. Commonwealth, 35 Va. App. 485, 493, 546 S.E.2d
229, 233, aff'd, 37 Va. App. 64, 553 S.E.2d 560 (2001) (en
banc). First, the defendant must clearly invoke his right to
counsel. Second, the defendant must initiate the further
discussion with the police. Third, the defendant's subsequent
waiver of the invoked right to counsel must be knowingly,
intelligently, and voluntarily made. Here, appellant argues
only that the Commonwealth failed to prove the second prong of
this test.
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We find the trial court correctly admitted appellant's
confession. Appellant initiated contact with the police. The
police did not approach him.
First, appellant is correct that Corporal Cooper could not
approach him and initiate an interrogation, even though he did
not know about the previous invocation of his right to an
attorney. See Arizona v. Roberson, 486 U.S. 675, 687-89 (1988);
Quinn, 25 Va. App. at 717-18, 492 S.E.2d at 478. However,
Corporal Cooper did not initiate any interviews.
The evidence, viewed in the light most favorable to the
Commonwealth, proved appellant's girlfriend, at his request,
contacted Corporal Cooper to discuss various crimes in Hampton.
Apparently, appellant wished to implicate his uncle in hopes of
having some charges against him dismissed. 7 During these
discussions, appellant began discussing the Norfolk robberies.
Clearly, Cooper did not initiate the discussions with appellant
nor did he initiate the topic of the Norfolk robberies.
Appellant's statements to Cooper "show[ed] a willingness to
further discuss" the Norfolk investigation. Potts, 35 Va. App.
at 495, 546 S.E.2d at 234. See also Foster v. Commonwealth, 8
Va. App. 167, 174, 380 S.E.2d 12, 16 (1989) (explaining, when a
defendant shows "'a willingness and a desire for a generalized
7
Based on information he provided to Corporal Cooper during
one of these discussions, further evidence on one robbery was
collected. As a result, one of the charges pending against
appellant in Hampton was dismissed.
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discussion about the investigation,'" he has initiated further
conversations with the police (quoting Oregon v. Bradshaw, 462
U.S. 1039, 1045-46 (1983))).
Once appellant indicated his willingness to discuss the
robberies, the "'police legitimately may inquire whether a
suspect has changed his mind about speaking to them without an
attorney.'" Foster, 8 Va. App. at 174, 380 S.E.2d at 16
(quoting Edwards, 451 U.S. at 490). Appellant initiated the
discussion of the Norfolk crimes while Cooper was interviewing
him. The corporal then asked if appellant was willing to talk
to the Norfolk officers about these crimes, which were
irrelevant to Cooper's investigation. Cooper's question was a
"legitimate inquiry as to whether [appellant] had changed his
mind" and now wanted to talk to the Norfolk police about those
incidents. Giles, 28 Va. App. at 535, 507 S.E.2d at 107.
When Cooper entered the interrogation room on June 7th,
appellant had already provided information on the Norfolk
robberies. By asking if appellant was willing to talk to the
Norfolk officers, Corporal Cooper simply verified appellant's
interest in talking to the police.
The fact finder concluded appellant initiated the
subsequent conversation with the Norfolk police. The record
supports that finding. Accordingly, we affirm the decision of
the trial court.
Affirmed.
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