Tuesday 23rd
October, 2001.
Torie Devon Redmond, Appellant,
against Record No. 0762-00-1
Circuit Court No. CR99-3244
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder,
Bray, Annunziata, Bumgardner, Frank, Clements, and Agee
Edward W. Webb (Office of the Public
Defender, on brief), for appellant.
Leah A. Darron, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
By unpublished opinion, a divided panel of this Court
reversed the appellant's conviction and remanded for a new
trial. Redmond v. Commonwealth, No. 0762-00-1 (Va. Ct. App. May
22, 2001). We stayed the mandate of that decision and granted
rehearing en banc.
Upon a rehearing en banc, the stay of the May 22, 2001
mandate is lifted, and the judgment of the trial court is
reversed and remanded for a new trial in accordance with the
majority panel opinion.
Judges Bray, Bumgardner, and Agee dissent for the
reasons set forth in the panel dissent.
This order shall be certified to the trial court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 2 -
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
TORIE DEVON REDMOND
MEMORANDUM OPINION * BY
v. Record No. 0762-00-1 JUDGE JAMES W. BENTON, JR.
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Edward W. Webb (Office of the Public
Defender, on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On this appeal, Torie Devon Redmond contends that the police
obtained a statement from him in violation of the Fifth Amendment
and that a trial judge erred in refusing to suppress the
statement. For the reasons that follow, we reverse the conviction
and remand for a new trial.
I.
The facts pertaining to the motion to suppress are
essentially undisputed. On May 7, 1999, the police arrested
Redmond for the murder of Gattis Bowling, Jr., and took Redmond to
an interview room. The record contains a videotape and written
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
- 3 -
transcript of the interrogation of Redmond by Detective
Christopher C. Molleen. Prior to advising Redmond of his Miranda
rights, Detective Molleen made several comments including the
following:
[DETECTIVE]: . . . . It's no miracle that
you're down here. Okay? Um, we've been
doing a lot of investigating here lately,
you have seen us in the neighborhood for the
last few days. Probably one of the worst
things you can do is underestimate me or
some the guys that are in here. Okay?
[REDMOND]: Hm Hmm.
[DETECTIVE]: Keep that in mind. It's not
pick on Torie Redmond day. I don't know
Torie Redmond that well. Torie Redmond
ain't never done anything to me. Okay? I'm
not here to, uh, bring you down or make
things tough on you, but we got some things
that we need to get straight. And you know
it's no miracle why you're here. Deep down
you do. And we'll talk about it. You know,
a lot of times in life you go out and do
something and it can start off as one thing
and end up another thing. And that's the
bottom line. You can have the best
intentions or the worst intentions, and
things can happen quick and you get out of
hand and things can happen. So, like I told
you, you're not here by accident and if you
listen to what I've got to say and make a
smart decision. You're under arrest.
You're in custody. You know what case I'm
investigating, and that's what you're under
arrest for. So, what I'm going to do is I'm
going to advise you of your rights and we'll
sit here and try to have an intelligent
conversation. You just remember, you know,
there's a lot, there's a lot of difference,
there's a lot of differences in crimes.
Okay? And this is a very serious crime and
you don't want to leave serious crimes up to
speculation. And so I could speculate and
make it into one thing. We could speculate,
- 4 -
it would be another thing when actually it's
something else. Okay, you can speculate
that it's very serious or a bad situation,
an accidental situation or could look very
cruel. You know what I'm saying? Does that
make sense?
[REDMOND]: Pretty much.
[DETECTIVE]: Well, I'm telling you. And
I'll tell you a couple examples exactly
what. You have the right to remain silent.
Anything you say can be used against you in
Court. You have the right to talk to a
lawyer and have him present with you while
you are being questioned. If you cannot
afford to hire a lawyer, one will be
appointed to represent you before any
questioning, if you wish. You can decide at
any time to exercise these rights, not
answer any questions or make any statements.
Do you understand?
[REDMOND]: Yeah.
For several minutes after this exchange, the detective made
other lengthy comments to Redmond indicating he could prove
Redmond's involvement and urging Redmond to respond.
[DETECTIVE]: You have to tell the truth and
if you don't try to hide something, I'm
going to prove you're hiding it. And,
ultimately, you know, you're the one that's
going to suffer the consequences, not me.
[REDMOND]: I don't want to seem arrogant or
nothing like that.
[DETECTIVE]: I don't want, Tory.
[REDMOND]: These are some pretty deep
charges.
[DETECTIVE]: Listen to what I got to say.
I don't think. I don't want you to seem
arrogant. Okay. I don't want you to seem
arrogant. I want you to do the best thing
for yourself. And the best thing for
- 5 -
yourself is you need to take some of the
heat off your back. Yeah, they are very
serious charges. This is the only
opportunity you're ever going to talk and
give your side. Period. This is . . .
[REDMOND]: Can I speak to my lawyer? I
can't even talk to lawyer before I make any
kinds of comments or anything?
[DETECTIVE]: You can do anything you like,
but I'm telling, I'm telling you like this.
You have the freedom to do anything you
want. You have the freedom to go to sleep
right now if you want to do that. Okay?
You have the freedom to sit here and talk to
me. Okay? The point is and what I'm trying
to tell you is, this is your opportunity;
this is your time. There ain't tomorrow,
there ain't later. Okay? There's not
later. There is no later. And I'm trying,
I'm trying to give you because you are a 24
year old man the opportunity to help
yourself out a little bit.
After several minutes of further lengthy comments by the
detective, Redmond confessed his involvement in the murder of
Bowling.
After considering the videotape of the interrogation, the
transcript of the interrogation, and the argument of counsel, a
judge ruled prior to trial that Redmond's statement was
"equivocal; and, therefore, it's not a clear invoking of his
rights." Thus, the judge denied the motion to suppress the
statement. Following trial, a jury convicted Redmond of first
degree murder. This appeal followed.
- 6 -
II.
"The warnings mandated by [Miranda v. Arizona, 384 U.S.
436, 467-73 (1966)], as a prophylactic means of safeguarding
Fifth Amendment rights, require that a person taken into custody
be advised immediately that he has the right to remain silent,
that anything he says may be used against him, and that he has a
right to retained or appointed counsel before submitting to
interrogation." Doyle v. Ohio, 426 U.S. 610, 617 (1976)
(citation omitted). The police must explain these rights to the
accused "before questioning begins." Davis v. United States,
512 U.S. 452, 457 (1994). After the police explain these
rights, "[i]f the individual states that he wants an attorney,
the interrogation must cease until an attorney is present."
Miranda, 384 U.S. at 474.
"[T]he 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). See also Edwards
v. Arizona, 451 U.S. 477, 485-86 (1981).
[T]he test for determining whether the
accused invoked the right to counsel is an
objective one. The Court must determine
whether the accused "articulate[d] his
desire to have counsel present sufficiently
clearly that a reasonable police officer in
the circumstances would understand the
statement to be a request for an attorney."
- 7 -
McDaniel v. Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851,
853 (1999) (en banc) (quoting Davis, 512 U.S. at 459).
When the detective began the interrogation, he did not
immediately give Redmond the Miranda warnings and never inquired
whether Redmond wished to make a statement or waive his right to
counsel. Instead, he first began by telling Redmond he was "not
[there] by accident" and that Redmond should "make a smart
decision." He then informed Redmond that he was "going to
advise [Redmond] of [his] rights and we'll sit here and try to
have an intelligent conversation." At no time did the detective
inquire of Redmond whether Redmond wished to waive his Miranda
rights and speak to him. The implicit message in the
interrogation prior to the giving of the Miranda warnings is
that they will have a "conversation" after the reading of his
rights. Indeed, that is precisely what the detective sought to
do until Redmond said "Can I speak to my lawyer? I can't even
talk to a lawyer before I make any kind of comments or
anything?"
Redmond's statement "Can I speak to my lawyer" is an
unambiguous request to talk to his counsel and was directly
responsive to the detective's earlier warning that "You have the
right to talk to a lawyer." If there could have been any doubt
about Redmond's intention, his further request would have
alerted any reasonable police officer of his purpose. When he
said, "I can't even talk to a lawyer before I make any kind of
- 8 -
comments or anything?," he reinforced his inability to deal with
the interrogation without counsel.
Without any doubt, the detective's response to Redmond
demonstrates that he understood Redmond's statements to be a
request for counsel. Rather than stopping the interrogation,
the detective made a lengthy response, which began with the
following:
[DETECTIVE]: You can do anything you like,
but I'm telling, I'm telling you like this.
You have the freedom to do anything you
want. You have the freedom to go to sleep
right now if you want to do that. Okay?
You have the freedom to sit here and talk to
me. Okay? The point is and what I'm trying
to tell you is, this is your opportunity;
this is your time. There ain't tomorrow,
there ain't later. Okay? There's not
later. There is no later. And I'm trying,
I'm trying to give you because you are a 24
year old man the opportunity to help
yourself out a little bit.
Thus, instead of honoring the request as required by Miranda,
Edwards, and their progeny, the detective deflected Redmond's
request with the generalized notion that Redmond could "do
anything you like." He then sought to persuade Redmond "to help
[him]self" and talk without counsel. He continued the
interrogation even though Redmond did not waive his Miranda
rights. We hold that in so doing the detective gained Redmond's
statement in violation of his Fifth Amendment rights.
- 9 -
Redmond's statement included his confession that he stabbed
the deceased and described the circumstances of the stabbing.
The introduction of that statement at trial was not harmless.
Even if "the other evidence amply supports the jury's verdicts
[the error is not harmless when] the disputed testimony may well
have affected the jury's decision." Catera v. Commonwealth, 219
Va. 516, 519, 248 S.E.2d 784, 786 (1978). Accordingly, we
reverse the conviction and remand for a new trial.
Reversed and remanded.
- 10 -
Bray, J., dissenting.
In the years since Miranda, it has
become well established that once an accused
expresses a desire to exercise his right to
counsel, authorities may not further
interrogate the accused until counsel is
present unless the accused initiates further
conversation or exchanges with the
authorities.
Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d 112, 114
(1995) (citing Edwards v. Arizona, 451 U.S. 477 (1981)).
However, the Virginia Supreme Court "has consistently held that
a clear and unambiguous assertion of the right to counsel is
necessary to invoke the Edwards rule." Id. at 266, 462 S.E.2d
at 115 (emphasis added); Green v. Commonwealth, 27 Va. App. 646,
653, 500 S.E.2d 835, 838 (1998). Thus, "if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that
a reasonable police officer in light of the circumstances would
have understood only that the suspect might be invoking the
right to counsel," questioning need not cease. Davis v. United
States, 512 U.S. 452, 459 (1994) (emphasis added).
In undertaking an Edwards/Davis analysis, a trial court
must apply an objective test to determine if an accused
"'articulate[d] his desire to have counsel present sufficiently
clearly'" for a "'reasonable police officer'" to "'understand
the statement to be a request for an attorney.'" McDaniel v.
Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851, 853 (1999)
(quoting Davis, 512 U.S. at 459). "[W]hether an accused
- 11 -
requested counsel is . . . a factual determination that will not
be disturbed on appeal unless clearly erroneous." Mills v.
Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992)
(citations omitted) (emphasis added).
Here, during an ore tenus hearing to address defendant's
motion to suppress, the trial court viewed the videotape of the
subject interrogation, together with a transcript of the
exchange. Thereafter, following argument of counsel and a
review of relevant case law, the court expressed "no problem at
all" finding defendant's query to Detective Molleen, "Can I
speak to my lawyer?," "somewhat ambiguous." A review of the
record discloses no clear error in the court's factual finding.
When defendant inquired, "Can I speak to my lawyer?,"
followed, without pause or interruption, by, "I can't even talk
to [a] lawyer before I make any kinds of comments or anything?,"
he was, perhaps, seeking clarification or confirmation of the
Miranda right to counsel. Accordingly, Molleen perceived a
question and, in response, assured defendant, "You can do
anything you like . . . . You have the freedom to do anything
you want," followed by additional comments that were neither
coercive nor misleading. Thus, simply stated, defendant was
properly advised of his Miranda rights, asked two related
questions of Molleen, both of which were properly answered, and,
without further inquiry, confessed to the offense. Such
- 12 -
evidence does not reflect an unambiguous, unequivocal invocation
of the right to counsel.
I, therefore, respectfully dissent.
- 13 -
Torie Devon Redmond v. Commonwealth of Virginia
Combined Opinion