Giles v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia

RONALD GILES, JR.
OPINION BY
v. Record No. 1374-97-3 JUDGE SAM W. COLEMAN III
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge

A. Gene Hart, Jr. (A. Gene Hart, Jr., P.C.,
on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Ronald Giles, Jr. was convicted by a jury of robbery and use

of a firearm in the commission of a felony. The sole issue on

appeal is whether the trial court erred in denying Giles's motion

to suppress his confession. Giles contends police officers

obtained his confession in violation of his Fifth Amendment right

to counsel. For the reasons that follow, we affirm the trial

court's conviction.
I. BACKGROUND

Giles was arrested for armed robbery of a motel. After

Giles's arrest, Investigator Knott, intending to interrogate

Giles, advised him of his Miranda rights. Giles asked to speak

with an attorney, whereupon Knott terminated the interview.

Immediately thereafter, Knott took Giles into an adjoining room

and turned him over to Officer Royer for booking. Officer Knott

said to Royer, "He's ready to go," and Knott then left the
building.

As the booking began, Officer Royer asked Giles if he had

spoken with the investigator about the charges; Giles responded:

"Yes, but I don't understand, I'm confused." Royer explained to

Giles that he had an arrest warrant for robbery and was being

"booked" for robbery. Giles expressed further confusion and

exclaimed, "Robbery?" At that point, Officer Royer asked Giles

if he wanted Investigator Knott to "come back over and talk to

[him]." Royer further stated: "Investigator Knott, he could

come back over here and talk to you, they want to talk to you.

They can clear you up from the matter, or if you know anything

about it, they'd like to talk to you about it." Giles responded,

"Yeah, I'll talk to them."
Approximately ten minutes after Officer Knott left, he was

summoned to return to the station. Upon return, Knott again

advised Giles of his Miranda rights, including his right to

counsel, and obtained from Giles a signed written waiver.

Thereafter, Giles made incriminating statements that were

introduced at trial.
II. ANALYSIS

The Fifth Amendment guarantees that "[n]o person . . .

shall be compelled to be a witness against himself." U.S.

Const., amend. V. The United States Supreme Court has recognized

that "an inability to protect the right [against

self-incrimination] at one stage of a proceeding may make its

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invocation useless at a later stage." Michigan v. Tucker, 417

U.S. 433, 440-41 (1974). Prior to the Miranda decision, whether

a confession was voluntary turned upon a factual determination of

whether the statement had been knowingly and freely given. A

court would examine the totality of the circumstances surrounding

an accused's interrogation to determine whether the resulting

confessions had been given voluntarily and of the accused's own

free will. See id. at 441. However, in Miranda the Court

expressly declared, for the first time, that the privilege

against self-incrimination applied directly to station house

interrogations "and that a defendant's statements might be

excluded at trial despite their voluntary character under

traditional principles." Id. at 443. Miranda addressed the

interrogations of four defendants performed in isolated rooms in

various police stations while the defendants were held

incommunicado. See Miranda v. Arizona, 384 U.S. 436, 491-98.

The Court described the station house atmosphere as generating

"`inherently compelling pressures which work to undermine the

individual's will to resist and to compel him to speak where he

would not otherwise do so freely.'" Illinois v. Perkins, 496

U.S. 292, 296 (1990) (quoting Miranda, 384 U.S. at 467). The

prophylactic Miranda protections apply to all interrogations

where the degree of restraint is equivalent to arrest or a

station house confinement. See Duckworth v. Eagan, 492 U.S. 195,

203 (1989) (citing Rhode Island v. Innis, 446 U.S. 291, 291

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(1980)).

Among the prophylactic measures Miranda grants an accused is

the right to counsel during a custodial interrogation. See

Miranda, 384 U.S. at 470-79.
[T]he Lawyer is the one person to whom
society as a whole looks as the protector of
legal rights of [the accused] in his dealings
with the police and the courts. For this
reason, the Court fashioned in Miranda the
rigid rule that an accused's request for an
attorney is per se an invocation of his Fifth
Amendment rights, requiring that all
interrogation cease.

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

Recognizing that police may exploit the inherently coercive

environment of a custodial interrogation in order to obtain a

facially voluntary waiver from an accused who has previously

asserted his right to counsel, the Supreme Court formulated the

"Edwards Rule." See Edwards v. Arizona, 451 U.S. 477, 484-87

(1981); Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492

S.E.2d 470, 474-75 (1997). Under Edwards, once an accused

asserts the right to counsel, all interrogation must cease until

counsel is present, or until the accused initiates further

discussion or interrogation. See Arizona v. Roberson, 486 U.S.

675, 680-82 (1988); Quinn, 25 Va. App. at 711, 492 S.E.2d at 475.

Once an accused asserts his or her right to counsel,

subsequent waiver of that right is not sufficient to make

admissible any incriminating statements thereafter obtained, even

if investigators have re-Mirandized the accused, unless the

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statements are initiated by the defendant and shown to be based

on a knowing, intelligent, and voluntary waiver. See Edwards,

451 U.S. at 484-87 (holding that although officers advised him of

his rights immediately prior to the interrogation, Edwards's

waiver of his previously invoked right was invalid); Roberson,

486 U.S. at 678-82 (finding an invalid waiver where the accused,

who had invoked his right to counsel, made incriminating

statements when he was later approached by another officer and

fully advised of his rights). Once an accused invokes his right

to counsel
then it is presumed that any subsequent
waiver that has come at the authorities'
behest, and not at the suspect's own
instigation, is itself the product of the
"inherently compelling pressures" and not the
purely voluntary choice of the suspect. As
JUSTICE WHITE has explained, "the accused
having expressed his own view that he is not
competent to deal with the authorities
without legal advice, a later decision at the
authorities' insistence to make such a
statement without counsel's presence may
properly be viewed with skepticism."
Michigan v. Mosely, 423 U.S. 96, 110, n.2
(1975) (concurring in result).

Roberson, 486 U.S. at 681. Only if the accused initiates further

"communication, exchanges, or conversations with the police," and

only if those communications result in the accused changing his

or her mind and freely and voluntarily waiving the right to

counsel, may the police resume interrogation without violating

the Edwards rule. See id. at 682.

We have recognized and applied a three-part analysis to

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evaluate the admissibility of a statement under the Edwards rule.

See Quinn, 25 Va. App. at 712, 492 S.E.2d at 475. 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 discussions or meetings with the police.

Third, if the accused did initiate further discussions or

conversations with police, the trial court must then ascertain

whether the accused knowingly and intelligently waived the

previously invoked right to counsel. See id.; Smith v. Illinois,

469 U.S. 91, 94-95 (1984).

In reviewing the trial court's denial of the motion to

suppress, we view the evidence in the light most favorable to the

Commonwealth, 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.

Because the Commonwealth concedes that Giles properly

invoked his right to counsel, the first element of the Edwards

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inquiry is not at issue. Therefore, we determine de novo

whether, under the facts viewed in the light most favorable to

the Commonwealth, Giles initiated the discussion which resulted

in this confession and whether after the initiation he freely and

voluntarily waived his right to counsel.

First, Giles argues that the police failed to terminate the

interrogation after he asserted his right to counsel. Giles

contends the police have a duty to inform other officers of an

accused's invocation of his right to counsel, that the Edwards
rule requires they ascertain, prior to interrogation, whether the

accused has invoked his or her Miranda rights, and that an

officer's ignorance does not relieve the officer from the duty to

comply with the Edwards rule. See Quinn, 25 Va. App. at 716-17,

492 S.E.2d at 477-78. The evidence shows that Investigator Knott

stopped interrogating Giles immediately after Giles invoked his

right to counsel. Giles contends, nevertheless, that Officer

Royer's subsequent query -- "did you speak with the

investigator?" -- constituted a virtually seamless continuation

of Knott's interrogation and that Royer failed to honor his

request for counsel.

We agree that, despite Officer Royer's lack of knowledge

concerning Giles's request for counsel, Royer was obliged to

comply with the Edwards prohibition on interrogation. However,

we find that the first question Royer posed did not qualify as

interrogation. Edwards does not prohibit routine communications

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between the police and the accused. See Foster v. Commonwealth,

8 Va. App. 167, 174, 380 S.E.2d 12, 16 (1989); Oregon v.

Bradshaw, 462 U.S. 1039, 1045 (1983); see also Timbers v.

Commonwealth, 28 Va. App. 187, 197-99, 503 S.E.2d 233, 237-38

(1998) (discussing routine booking exceptions). In Bradshaw, the

Court held that the accused's question, "well what's going to

happen to me now?" initiated further conversation by the accused

and, therefore, his subsequent waiver of his Miranda rights was

valid. See Bradshaw, 462 U.S. at 1045-47. However, the Court

cautioned that not every statement by an accused or an officer

would constitute such an initiation.
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 the
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 on the
custodial relationship, will not generally
"initiate" a conversation in the sense in
which the word was used in Edwards.

Id. at 1045. Accordingly, Officer Royer's question, "did you

speak with the investigator?" was not an impermissible

continuation of Officer Knott's interview. The question was not

coercive in nature and merely inquired about the status of the

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investigation. It was a question arising out of and during the

routine incidents of the custodial relationship.

For the same reason, we reject Giles's second argument that

Officer Royer, by asking the question concerning the status of

the investigation, re-initiated the properly terminated

interrogation. As previously stated, Officer Royer's query

regarding whether Giles had spoken with Investigator Knott did

not go beyond the routine communications permitted by Edwards.

Similarly, because Officer Royer's explanation to Giles of the

warrant for robbery was properly characterized as a routine

"booking" communication, it also does not violate the Edwards
standard.

Having addressed Officer Royer's initial statements, the

next question is whether Giles's statements initiated the meeting

with Knott. The analysis depends on whether his statements

"represent[ed] a desire . . . to open up a more generalized

discussion relating directly or indirectly to the investigation."
Id.; see also Correll v. Commonwealth, 232 Va. 454, 462-64, 352

S.E.2d 352, 356-58 (1987) (applying the Bradshaw analysis).

Giles stated that he was confused, that he did not

understand, and then expressed surprise that he was being charged

with robbery. These utterances by Giles fairly constituted an

invitation for Officer Royer to discuss with Giles his situation.

Giles's surprise at the charges indicated a "desire on the part

of the accused to open up a more generalized discussion relating

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. . . to the investigation." Moreover, Giles's comments were not

necessary inquiries incidental to the booking and custodial

relationship. In response to Giles's expressed confusion, Royer

asked if Giles wished to resume the discussion and interrogation

with Officer Knott. At that point, Giles indicated a desire to

meet with Knott.

Previously, we recognized that under certain circumstances

"`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 Justice Powell's

concurrence in Edwards, 451 U.S. at 490). In Foster, the accused

properly invoked his right to counsel but continued talking to

the investigator. We found that despite his request for counsel,

the accused in Foster made apparent his intention to continue a

dialogue with the officers and as such the accused "`evinced a

willingness and a desire for a generalized discussion about the

investigation.'" Foster, 8 Va. App. at 174, 380 S.E.2d at 16

(quoting Bradshaw, 462 U.S. at 1045-46).
In view of the interaction between Giles and Royer, Royer's

statement was a legitimate inquiry as to whether Giles had

changed his mind. Admittedly, after Giles initiated further

discussion, Royer's response may have had a persuasive or coaxing

effect on Giles: "[T]hey want to talk to you. They can clear

you up from the matter, or if you know anything about it, they'd

like to talk to you about it." However, Giles had already

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expressed a willingness to discuss the investigation and because,

as a result of that conversation, he expressly agreed to meet

with Knott, we find that Giles initiated the meeting with Knott.

Finally, we "`determine if the defendant knowingly and

intelligently waived the right [to counsel] he had invoked.'"

Quinn, 25 Va. App. at 712, 492 S.E.2d at 475 (quoting Smith, 469

U.S. at 95). "His waiver must be evaluated in view of the

totality of circumstances, including his background and

experience and the conduct of the police." Correll, 232 Va. at

464, 352 S.E.2d at 357. "'[A]ny evidence the accused was

threatened, tricked or cajoled into a waiver will, of course,

show that the defendant did not voluntarily waive his

privilege.'" Foster, 8 Va. App. at 173, 380 S.E.2d at 16

(quoting Miranda, 384 U.S. at 476).

No evidence suggests that the officers failed to honor

Giles's request for counsel. Officer Knott ceased the interview

immediately after Giles invoked his right to counsel. By

expressing surprise at the charge of robbery, Giles initiated the

dialogue with Royer that resulted in his agreement to resume the

interview with Officer Knott. When Royer asked whether Giles

wanted to meet with Knott, despite the fact that Royer's comments

during the discussion may have influenced Giles's request to

resume the interview, Royer's comment did not initiate the

discussion and, furthermore, it did not constitute an attempt to

trick, threaten, or cajole Giles. Only after Giles expressed a

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willingness to waive his right to counsel and to speak with

Officer Knott did Officer Royer, instead of proceeding with

interrogation, recall Knott and remand Giles to his custody.

Knott again advised Giles of his right to remain silent and right

to counsel and obtained a signed written waiver. We find that

Knott obtained a valid waiver from Giles of his right to counsel

during their second meeting.

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Accordingly, we affirm the convictions.

Affirmed.

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