COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2556-98-1 JUDGE SAM W. COLEMAN III
APRIL 13, 1999
RICHARD THOMAS ANDERSON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jack B. Stevens, Judge Designate
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellant.
David H. Moyer (Bashara & Hubbard, on
brief), for appellee.
Richard Thomas Anderson is charged with two counts of
robbery, two counts of abduction, four counts of use of a firearm
in the commission of a felony, and unlawfully wearing a mask. The
trial court granted Anderson’s motion to suppress statements he
made to police on April 10, 1998 and May 1, 1998. We granted the
Commonwealth an interlocutory review of the trial judge’s ruling.
Because the trial judge based his ruling on a single and erroneous
principle of law in suppressing the statements, we reverse.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
BACKGROUND
When the Commonwealth appeals a trial court’s order
suppressing evidence, we view the relevant evidence in the light
most favorable to the defendant granting to the defendant all
reasonable inferences fairly deducible therefrom. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Officers arrested Anderson on April 10, 1998, in connection
with a robbery. Detective Loftin brought Anderson to an interview
room where he presented Anderson with a “Legal Rights Advice Form”
explaining his Miranda rights. Anderson answered “no” to item
number six that read “I further state that I waive these rights
and desire to make a statement.” Anderson informed Detective
Loftin that he did not want to speak to him. According to
Anderson, he further informed Loftin that he had retained a lawyer
and that he wanted to speak with his lawyer. Loftin left Anderson
in the interview room.
Anderson’s attorney arrived at the police station shortly
after the officers took Anderson into custody. The attorney
requested to see Anderson, but the officers denied him access.
Forty minutes after Loftin left the interview room, two
homicide detectives entered the room and questioned Anderson
regarding two unsolved homicide cases. After the homicide
detectives left, Loftin returned to the room -– however, the
testimony conflicts regarding his return.
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Anderson’s testimony was that Loftin reinitiated the
interrogation. Anderson testified that Loftin returned and
cautioned Anderson that he was in “real trouble now,” that he was
suspected of homicide, and that “the bank robbery wasn’t going to
be anything.” Loftin left the interview room for another hour,
after which he returned and explained to Anderson that if he “told
[Loftin] anything about the robbery, then [Loftin] could talk to
the detective on homicide and [Anderson] wouldn’t have to worry
about that.” Shortly thereafter, Anderson waived his Miranda
rights and made a statement to Loftin.
In contrast, Loftin testified that Anderson requested a
cigarette, which Loftin delivered. During that contact, Anderson
began discussing his problems. Eventually, Anderson started to
talk about issues related to the robbery charge. Loftin stopped
him and again advised him of his rights, whereupon Anderson waived
his rights and made a statement.
On May 1, 1998, Investigator Peterson requested to speak with
Anderson concerning a different robbery. Anderson, who was still
in custody, informed the investigators that he had a lawyer, that
he wanted to speak with the lawyer, and that he did not want to
make a statement. The investigators told Anderson that his lawyer
represented him on a different case and therefore “it didn’t
matter.” Thereafter, Anderson waived his Miranda rights and made
a statement to police.
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Although substantial evidence in the record indicated that
Anderson requested to see an attorney, the trial judge did not
resolve that factual dispute or suppress the evidence on that
basis. Instead, the trial court found that the police officers
had adequate notification that Anderson was represented by counsel
and that Anderson’s counsel had clearly expressed a desire to meet
with Anderson. The trial court expressly held that failure of the
police officers to permit the attorney to see his client, upon
request from the attorney, rendered both statements in violation
of Anderson’s Fifth Amendment privilege against
self-incrimination. Accordingly, on that basis the trial judge
suppressed the statements.
ANALYSIS
We review de novo the trial court’s application of defined
legal standards to the historical facts. See Quinn v.
Commonwealth, 25 Va. App. 702, 712-13, 492 S.E.2d 470, 475-76
(1997).
The trial court relied on an erroneous legal principle in
concluding that the investigators violated Anderson’s Fifth
Amendment rights. The trial court stated that
[w]hen the lawyer shows up and says my
client is back there and I want to see him,
I think that’s adequate notification that
the defendant is represented by counsel and
he must be allowed access to the defendant,
his client, if [police] are going to
question him.
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In Moran v. Burbine, 475 U.S. 412 (1986), police officers
deliberately misinformed an attorney who had been contacted for
the defendant by telling him that the defendant would not be
questioned until the following day and by failing to inform the
attorney of more serious charges brought against his client.
Additionally, the officers declined to inform the defendant that
an attorney had been contacted to represent him. However, as to
a suspect’s Fifth Amendment right to counsel, the Supreme Court
refused “to adopt a rule requiring the police to inform a
suspect of an attorney’s efforts to reach him.” Id. at 425.
“Events occurring outside the presence of the suspect and
entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a constitutional
right.” Id. at 422; see also Jackson v. Commonwealth, 255 Va.
625, 638, 499 S.E.2d 538, 546 (1998) (holding it was not error
for police to lie to a sixteen-year-old juvenile defendant about
whether his mother was in the building nor for police to deny
the mother’s attempt to see the defendant). Thus, because the
right to remain silent and to have counsel present belong to the
defendant, neither an attorney’s presence nor the attorney’s
request to see his or her client are relevant as to whether the
defendant invoked his Fifth Amendment privilege against
self-incrimination. See Moran, 475 U.S. at 421-28.
Accordingly, by suppressing the evidence because the police
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officers failed to honor counsel’s request to see his client,
the trial court applied an erroneous legal standard.
We decline to address whether investigators obtained the
defendant’s statements in violation of his Fifth Amendment right
to counsel. That issue, although presented to the trial court in
the motion to suppress and on the evidence, has yet to be decided
by the trial court and is not before us on appeal.
Accordingly, because the trial court has yet to consider
properly whether investigators violated Anderson’s Fifth Amendment
right to counsel, and because the only basis upon which the trial
court suppressed the statements was invalid, we reverse and remand
for such further action as is required.
Reversed and remanded.
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