COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1915-99-4 JUDGE ROBERT P. FRANK
FEBRUARY 15, 2000
GEORGE BALL, JR., S/K/A
GEORGE A. BALL, JR.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Jr., Judge
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Robert F. Horan, III (Hart & Horan, P.C., on
brief), for appellee.
The Commonwealth of Virginia (appellant) appeals the
suppression of the statement made by George Ball, Jr. (appellee)
to Detective McClelland of the Prince William County Police
Department. On appeal, appellant contends that the trial court
erred in ruling that appellee's Fifth Amendment right to counsel
was violated by continued interrogation after the invocation of
his rights. We agree and reverse the ruling of the trial court
and remand for a trial consistent with this opinion.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Appellee's hand was injured during an incident with police
on February 24, 1999. He was taken to a hospital for surgery on
the injured hand. The next day, appellee was interviewed in the
hospital about the incident by Detective McClelland of the
Prince William County Police Department. After Detective
McClelland advised appellee of his Miranda rights, the following
exchange occurred:
[Appellee]: I'd rather have my lawyer.
Cause I'm not . . . I'm not
really.
McClelland: Okay.
[Appellee]: I'm on medication. I don't
. . .
McClelland: I-I understand that Mr. Ball.
All right. Uh.
[Appellee]: What have I been charged with?
McClelland: You've been charged with
Attempt Capital Murder
(overriding conversation) . . .
[Appellee]: Attempt Capital Murder
(overriding conversation) . . .
McClelland: . . . and Malicious Wounding.
[Appellee]: Attempt Capital Murder?
McClelland: Right.
[Appellee]: And what is that?
McClelland: That's for trying to get the
officer's gun and what else are
you going to do with it, the
gun, if you're trying to
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take . . . if you're trying to
get it?
[Appellee]: I wasn't trying to get to an
officer's gun. I could have
grabbed.
McClelland: Well, that's what I need to
talk to you about.
[Appellee]: Then I'll talk to you without a
lawyer. 1
McClelland: Do what?
[Appellee]: I said, I'll talk to you
without a lawyer.
McClelland: You will talk to me without a
lawyer?
[Appellee]: Yes.
At a suppression hearing, the trial judge ruled that
appellee's statement to McClelland was voluntary but should be
suppressed because the interrogation continued after appellee
invoked his Fifth Amendment right to counsel.
II. ANALYSIS
In order to insure that the Fifth Amendment
right against compulsory self-incrimination
is protected during the custodial
interrogation of criminal suspects, the
United States Supreme Court established a
series of "procedural safeguards" that law
enforcement authorities must adhere to when
interviewing suspects in their custody. See
Davis v. United States, 512 U.S. 452, 457,
1
While appellee argued at the suppression hearing that he
stated that he would talk "about" a lawyer, not "without" a
lawyer, the trial court, as trier of fact, ruled that the
statement was, "Then I'll talk to you without a lawyer." We,
therefore, accept the trial court's finding as one of historical
fact.
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114 S. Ct. 2350, 2354, 129 L.Ed.2d 362
(1994) (citing Michigan v. Tucker, 417 U.S.
433, 443-44, 94 S. Ct. 2357, 2363-64, 41
L.Ed.2d 182 (1974)); see also Mier v.
Commonwealth, 12 Va. App. 827, 831, 407
S.E.2d 342, 344-45 (1991). Compliance with
these procedures is a "prerequisite[ ] to
the admissibility of any statement made by a
defendant" during custodial interrogation.
Miranda[v. Arizona], 384 U.S. [436,] 476, 86
S. Ct. [1602,] 1629 [, 16 L.Ed.2d 694
(1966)]; see also Goodwin v. Commonwealth, 3
Va. App. 249, 252, 349 S.E.2d 161, 163
(1986).
Quinn v. Commonwealth, 25 Va. App. 702, 709-10, 492 S.E.2d 470,
474 (1997).
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." See Davis, 512 U.S. at 458, 114
S. Ct. at 2355; McNeil v. Wisconsin, 501
U.S. 171, 176, 178, 111 S. Ct. 2204, 2208,
2209, 115 L.Ed.2d 158 (1991); Michigan v.
Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176,
1180, 108 L.Ed.2d 293 (1990).
Id. at 710-11, 492 S.E.2d at 474-75.
Under Edwards v. Arizona, 451 U.S. 477 (1981), "once the
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." Quinn, 25 Va. App. at 711,
492 S.E.2d at 475 (citations omitted).
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The determination of inadmissibility under Edwards involves
application of a three-part test. See id. at 712, 492 S.E.2d at
475.
First, the trial court "must determine
whether the accused actually invoked his
right to counsel" and whether the defendant
remained in continuous custody from the time
he or she invoked this right to the time of
the statement. Second, if the accused has
invoked his or her right to counsel and has
remained in continuous custody, the
statement is inadmissible unless the trial
court finds that the statement was made at a
meeting with the police that was initiated
by the defendant or attended by his lawyer.
Third, if the first two parts of the inquiry
are met, the trial court may admit the
statement if it determines that the
defendant thereafter "knowingly and
intelligently waived the right he had
invoked."
Id. at 712, 492 S.E.2d at 475 (citations omitted).
In reviewing the trial court's [grant]
of the motion to suppress, we view the
evidence in the light most favorable to the
[prevailing party], granting to it all
reasonable inferences deducible therefrom.
See Shears v. Commonwealth, 23 Va. App. 394,
398, 477 S.E.2d 309, 311 (1996). Although
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. See id. Whether the defendant
invoked his or her right to counsel, and
thereafter knowingly and voluntarily waived
that right, requires that we apply defined
legal standards to the historical facts.
See Quinn, 25 Va. App. at 712-13, 492 S.E.2d
at 475-76.
Giles v. Commonwealth, 28 Va. App. 527, 532-33, 507 S.E.2d 102,
105 (1998).
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Although hospitalized, appellee was charged with attempted
capital murder and malicious wounding and was under guard by law
enforcement officers. After receiving Miranda warnings from
Detective McClelland, appellee stated, "I'd rather have my
lawyer." Under the first prong of the Edwards test, we find
that appellee invoked his right to counsel while in police
custody.
Next, we address whether appellee initiated the
incriminating discussion with Detective McClelland. Under the
Edwards test, appellee remained in constant custody and did not
have his lawyer present during his discussion with Detective
McClelland. Therefore, in order for the statement to be
admissible, appellee must have initiated the conversation with
McClelland.
The trial court ruled that the statement was inadmissible
because a defendant cannot reinitiate discussion with the police
unless there is a break in the defendant's contact with the
police. We find no authority to support the trial court's
ruling nor did appellee cite any.
In Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the
United States Supreme Court held that the defendant, who had
previously invoked his right to counsel, initiated further
conversation with the police by asking, "'Well, what is going to
happen to me now?'" The Court wrote:
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While we doubt that it would be desirable to
build a superstructure of legal refinements
around the word "initiate" in this context,
there are undoubtedly situations where a
bare inquiry by either a defendant or by a
police officer should not be held to
"initiate" any conversation or dialogue.
There 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 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. The Court, however, held that the defendant's question
"evinced a willingness and a desire for a generalized discussion
about the investigation; it was not merely a necessary inquiry
arising out of the incidents of the custodial relationship."
Id. at 1045-46. The Court did not articulate any requirement
that there be a passage of time between the invocation of the
right to counsel and the defendant's initiation of conversation
with the police.
In Giles, 28 Va. App. 527, 507 S.E.2d 102, we held that the
defendant, who had previously invoked his right to counsel,
initiated conversation with the police during booking procedures
by indicating that he was confused and did not understand the
charge against him. We reasoned that the defendant's statements
that he was confused and did not understand and then his
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surprise at being charged with robbery "fairly constituted an
invitation for Officer Royer to discuss with [the defendant] his
situation." Id. at 535, 507 S.E.2d at 106. We further stated
that the defendant's comments "were not necessary inquiries
incidental to the booking and custodial relationship." Id. It
is significant to note that the defendant in Giles invoked his
right to counsel, the police terminated the interview, and the
booking procedures, during which the defendant initiated the
conversation, began immediately thereafter.
We find no support for the trial's court ruling that a
period of time must elapse before a defendant, who had
previously invoked his right to counsel, can initiate further
conversation with the police. Instead, both federal and
Virginia cases hold that statements by a defendant that indicate
a willingness and a desire for a generalized discussion about
the investigation are sufficient to initiate conversation with
the police under Edwards.
In this case, appellee invoked his right to counsel
whereupon the police cease interrogation. Appellee then
immediately asked, "What have I been charged with?" We find
that appellee's question was not a necessary inquiry of the
custodial relationship. As in Giles, appellee's question
"fairly constituted an invitation" for Detective McClelland to
discuss appellee's situation. Further, once Detective
McClelland told appellee that he was charged with attempted
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murder, appellee asked, "And what is that?" Appellee's request
for explanation cannot be characterized as anything other than a
generalized discussion about the investigation.
The trial court found that appellee's waiver was voluntary,
so we do not address the third prong of the Edwards test.
We, therefore, reverse the ruling of the trial court that
appellee's statements to Detective McClelland did not constitute
initiation of conversation because a period of time did not
separate the statements from appellee's invocation of the right
to counsel. We, therefore, find that appellee initiated a
conversation with Detective McClelland during which he made
incriminating statements and that the waiver of his right to
counsel was voluntary. Appellee's statements to Detective
McClelland are, therefore, admissible as evidence in a trial
consistent with this opinion.
Reversed and remanded.
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