Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 010636
JASON WAYNE GREGORY
OPINION BY JUSTICE DONALD W. LEMONS
January 11, 2002
JASON WAYNE GREGORY
v. Record No. 011028
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Jason Wayne Gregory (“Gregory”) was tried separately for
two sets of unrelated offenses. One trial involved charges of
capital murder, robbery, and two counts of use of a firearm in
the commission of a felony (the “murder offenses”). The
remaining trial involved charges of statutory burglary, grand
larceny, and vandalism (the “burglary offenses”). In these
appeals, we consider whether the Court of Appeals erred in
holding that Gregory did not knowingly, intelligently, and
voluntarily waive his right to speedy trial on the burglary
offenses. We further consider whether the Court of Appeals
erred in holding that the rule of Edwards v. Arizona, 451 U.S.
477 (1981), did not prohibit police-initiated questioning of
Gregory on January 16, 1998, when there had been a break in
custody between successive interrogations concerning the
murder offenses.
I. Facts and Procedural History
a. Investigation
On December 31, 1997, police found the dead body of James
Michael Lambrecht (“Lambrecht”) in the backseat of a blue Ford
Escort. Lambrecht had two gunshot wounds to the head.
Lambrecht’s wife told the investigating officers that
Lambrecht sold marijuana, and she provided the officers with
his address book that contained a list of his customers. The
list included the name “Jason,” whom the police later
determined was Gregory.
At some time prior to January 4, 1998, Detective
Elizabeth R. Baker (“Detective Baker”) left a message at
Gregory’s home requesting that he contact her. Gregory
responded on January 4, 1998. Detective Baker and Detective
Steve Smith (“Detective Smith”) went to Gregory’s home. Upon
request by the detectives, Gregory voluntarily accompanied
them to the police station. Gregory was transported in a
marked police car. He was not placed under formal arrest or
handcuffed, and he rode to the police station in the front
seat of the car. At that time, both detectives and Gregory
knew that there was an outstanding capias for Gregory’s arrest
on unrelated charges.
2
At the police station, without advising Gregory of his
Miranda rights, Detectives Baker and Smith questioned Gregory
about Lambrecht’s murder. Detective Smith told Gregory that
he had interviewed one of Gregory’s co-workers who saw
Lambrecht the night before he was killed. The co-worker
described a person he saw seated in the back seat of
Lambrecht’s car. Detective Smith told Gregory that he matched
the description of that person, which included a sweatshirt
matching the one Gregory was wearing during the interview.
Gregory then stated, “I think I should talk to my lawyer.”
Detective Smith asked, “Why? Have you done something wrong?”
The detectives continued their questioning of Gregory and did
not advise him of his Miranda rights at any time on that
occasion. During the remainder of the interview, Gregory did
not mention an attorney again, nor did he admit to murdering
Lambrecht.
After the interrogation, Gregory was not released.
Rather, he was brought before a magistrate who served him with
the outstanding capias. Gregory was released on bond the
following day. The police had no further contact with Gregory
until January 16, 1998.
On January 15, 1998, the Redeemer Lutheran Church in
Chesterfield County was burglarized and $60,000 worth of
church property was stolen or vandalized. During the
3
investigation, the police interviewed an employee of a
convenience store near the church who informed them that on
the evening of the burglary, a man had tried to buy batteries
for a radio that matched the description of a radio stolen
from the church. The police viewed the store’s security
camera videotape and identified Gregory as the man who had
attempted to buy the batteries.
On January 16, 1998, Jeff Able (“Able”) told Detective
Baker that on the day before Gregory had informed Able that he
had burglarized the church. Additionally, Able told Detective
Baker that Gregory admitted that he and Michael Sammons
(“Sammons”) had killed Lambrecht. The police then arrested
Sammons, who quickly implicated both himself and Gregory in
the murder.
On January 16, 1998, Gregory was arrested for the
burglary of the church and taken to police headquarters. He
was advised of his Miranda rights, both orally and in writing,
and signed a waiver form before questioning began. During
this interrogation, Gregory confessed to shooting Lambrecht.
After the confession, he was arrested and charged with the
murder offenses.
b. Pretrial and Trial Proceedings
Gregory was represented by three attorneys at various
times during trial and related proceedings for the two sets of
4
offenses. On July 20, 1998, the Grand Jury of the Circuit
Court of Chesterfield County indicted Gregory on seven
charges:
Murder offenses
1. (CR98F01085-01) Capital Murder of James
Lambrecht
2. (CR98F01085-02) Use of a Firearm in the
commission of murder of James Lambrecht
3. (CR98F01085-03) Robbery of James Lambrecht
4. (CR98F01085-04) Use of a Firearm in the
commission of robbery of James Lambrecht
Burglary offenses
5. (CR98F01086-01) Breaking and Entering
Redeemer Lutheran Church
6. (CR98F01086-02) Grand Larceny of property
of Redeemer Lutheran Church
7. (CR98F01086-03) Destruction of Property of
Redeemer Lutheran Church (Vandalism)
By order dated June 18, 1998, Wayne Morgan (“Morgan”) was
appointed by the circuit court to represent Gregory on six of
the seven charges. 1 By order dated July 24, 1998, Morgan was
appointed to represent Gregory on the seventh charge as well.
By order dated July 24, 1998, the circuit court appointed
Theodore Tondrowski (“Tondrowski”) to represent Gregory as co-
counsel on all seven charges.
5
At a hearing on January 26, 1999, the circuit court
appointed Steven Benjamin (“Benjamin”) as “lead co-counsel” on
the four murder offenses only. 2 Following this hearing, on
February 1, 1999, Tondrowski moved to withdraw as counsel for
Gregory on the murder offenses only, but his motion was
denied.
A hearing on motions was held in the circuit court on
October 19, 1998. The record reflects that all seven charges
were before the trial court. The Commonwealth’s Attorney
announced that “the main reason we were going to be here, was
the motion – the defendant was going to waive his right to
speedy trial. . . .” The trial court was occupied with the
task of setting two trial dates: one for the burglary offenses
and one for the murder offenses. The task was further
complicated by the scheduling of trials of co-defendants.
Gregory and Tondrowski were present at the hearing, but Morgan
was not present. In response to the Commonwealth’s statement
of the main purpose of the hearing, Tondrowski stated, “Judge,
as I understand it, Mr. Morgan talked to Mr. Gregory last
time, and I wasn’t there, but it’s my understanding from Mr.
1
Morgan had been previously appointed to represent
Gregory on these charges by the General District Court on June
8, 1998.
2
The order reflecting the appointment was dated June 25,
1999.
6
Morgan that Mr. Gregory is prepared to waive the speedy trial
rights.”
The Commonwealth first moved to continue the trial on the
burglary offenses from February 1 to February 5, 1999. When
the trial court discussed this continuance to a particular
date with counsel, the following exchange took place:
Tondrowski: Judge, the only problem I have
with that is I have not discussed this issue
with Mr. Morgan, and Mr. Morgan represents
[Gregory] on the B&E’s, and I do not. That’s
the problem I have with it.
The Court: All right. Well, we’re going to
set it for February the 5th. That is the
burglary case.
Despite Tondrowski’s disclaimer of representation of Gregory
on the burglary offenses, the various orders of appointment
clearly establish that on October 19, 1998, both Tondrowski
and Morgan represented Gregory on all seven charges before the
trial court.
The Commonwealth then moved to set the trial on the
murder offenses for February 22, 1999. The trial court
stated, “[a]ll right. Mr. Tondrowski, have you had the
opportunity to consult with your client? I know you said Mr.
Morgan had, but have you had the opportunity to consult with
your client regarding waiver of speedy trial?” The record of
the proceedings shows that Tondrowski requested permission to
discuss the issue with Gregory and a conference between
7
Tondrowski and Gregory took place. After the conference,
Tondrowski replied to the trial court’s question by stating,
“my client and Mr. Morgan . . . discussed it in great detail,
and my client is prepared to go forward with the waiver.”
The trial court then engaged in the following exchange
with Gregory and counsel:
THE COURT: Is, Mr. Gregory, what your
lawyer says correct?
DEFENDANT GREGORY: Yes, sir.
THE COURT: You wish to waive your
right to speedy trial?
DEFENDANT GREGORY: Yes, sir.
THE COURT: And you’ve had extensive
discussions with Mr. Morgan reference that
waiver?
DEFENDANT GREGORY: I would not say
extensive.
THE COURT: Well, have you had enough
discussion that you are satisfied that
that is what is in your best interest?
DEFENDANT GREGORY: He told me that that’s
what was in my best interest, if that’s
what you’re asking.
THE COURT: And do you concur with
that? Do you have any reason not to concur
with it?
DEFENDANT GREGORY: No, sir.
THE COURT: So you will waive your
right to a speedy trial?
DEFENDANT GREGORY: Yes, sir.
8
THE COURT: And, Mr. Tondrowski, having
discussed that with your client, you would
concur in his waiver?
MR. TONDROWSKI: I would concur, yes.
THE COURT: All right. Then we’ll
continue the case over to begin on Monday,
February 22nd, at 9:00 a.m.
On February 4, 1999, Gregory filed a motion to dismiss
the burglary offenses claiming that his statutory right to a
speedy trial pursuant to Code § 19.2-243 had been violated
because he had been continuously incarcerated and more than
five months had passed since the determination of probable
cause in the General District Court on June 8, 1998. This
motion was filed and argued by Benjamin who had never been
appointed to represent Gregory on the burglary offenses.
Gregory maintained that the October 19, 1998 hearing only
addressed waiver of speedy trial rights with respect to the
murder offenses and not the burglary offenses. Additionally,
Gregory argued that, even if the record of the proceedings
were interpreted to apply to both sets of offenses, the waiver
of speedy trial rights with respect to the burglary offenses
was ineffective because Morgan had not been present at the
October 19, 1998 hearing. According to Gregory, Morgan’s
absence violated his Sixth Amendment right to counsel;
9
therefore, his waiver could not have been knowing,
intelligent, and voluntary.
At a hearing on the motion, Benjamin requested the
Commonwealth to stipulate that Tondrowski “never represented
Mr. Gregory on the burglary, grand larceny, and vandalism
charges, and has never done anything – has never undertaken
that representation.” The trial court asked the Commonwealth
if the stipulation was accepted. The Commonwealth declined to
accept the stipulation and stated, “Judge, I would rely on the
Court orders and what the record would reflect.” Addressing
Benjamin, the trial court stated, “[r]ely on what the records
reflect, sir,” to which Benjamin responded, “[a]ll right,
sir.”
The Commonwealth’s response to the motion argued that
Gregory clearly had talked to Morgan about speedy trial
waiver, and that the trial court was correct “in considering
Mr. Tondrowski to be representing [Gregory] on all charges” at
the October 19, 1998 hearing. The trial court denied
Gregory’s motion to dismiss the burglary offenses.
Gregory was subsequently tried and convicted of burglary,
vandalism, and grand larceny. At a separate trial, Gregory
was tried and convicted of capital murder, robbery, and two
counts of use of a firearm in the commission of a felony.
c. Appellate Proceedings
10
On appeal, in an unpublished opinion, the Court of
Appeals reversed Gregory’s convictions on the burglary
offenses and affirmed Gregory’s convictions on the murder
offenses. With regard to the burglary offenses, the Court of
Appeals held that Gregory was not tried within the time
required by Code § 19.2-243 because more than five months had
elapsed between the probable cause finding and the trial, and
that Gregory had not waived his statutory speedy trial rights.
The Court of Appeals held that the colloquy at the October 19,
1998 hearing did not address the burglary offenses, and that
Morgan’s absence from the hearing rendered ineffective any
waiver that otherwise took place. Gregory v. Commonwealth,
Record No. 1671-99-2, 2001 Va. App. LEXIS 125, at *13 (Mar.
13, 2001).
On appeal of the murder offenses to the Court of Appeals,
Gregory argued that police violated his rights provided in
Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v.
Arizona, 451 U.S. 477 (1981), and that the trial court erred
in failing to suppress evidence obtained from the
interrogations on January 4 and January 16, 1998. The trial
court had denied the motion to suppress. The trial court held
that the interview on January 4, 1998 was non-custodial and
that Gregory did not invoke his Fifth Amendment right to
counsel during the interview; therefore, Miranda rights did
11
not attach. Finding that Miranda warnings were given prior to
the January 16, 1998 interview, the trial court held that
Miranda rights were not violated, and because the prior
interview was not custodial and there had been no prior
invocation of the right to counsel, Edwards did not apply.
While affirming the trial court’s denial of Gregory’s
motion to suppress, the Court of Appeals did not decide
whether the January 4, 1998 interview was custodial in nature,
nor did it decide whether Gregory invoked his right to
counsel. Rather, the Court of Appeals determined that any
trial court error, if made, was harmless. The Court of
Appeals also held that a break in Gregory’s custody between
interviews made the requirements of Edwards inapplicable.
Gregory, 2001 Va. App. LEXIS 125, at *21.
Gregory appealed the Court of Appeals’ affirmance of the
convictions on the murder offenses. The Commonwealth appealed
the Court of Appeals’ reversal of the burglary offenses. We
awarded appeals to Gregory and the Commonwealth and we will
affirm the murder convictions, but we will reverse the
judgment of the Court of Appeals concerning the burglary
convictions.
II. Speedy Trial
Gregory argues that the trial court erred in denying his
motion to dismiss his burglary, grand larceny, and vandalism
12
charges because the Commonwealth failed to try him within five
months of finding of probable cause in violation of Code
§ 19.2-243.
Code § 19.2-243 states, in part:
Where a general district court has found
that there is probable cause to believe that
the accused has committed a felony, the
accused, if he is held continuously in custody
thereafter, shall be forever discharged from
prosecution for such offense if no trial is
commenced in the circuit court within five
months from the date such probable cause was
found by the district court; and if the accused
is not held in custody but has been recognized
for his appearance in the circuit court to
answer for such offense, he shall be forever
discharged from prosecution therefor if no
trial is commenced in the circuit court within
nine months from the date such probable cause
was found.
Code § 19.2-243(4), however, states that the provisions of the
section do not apply if the failure to try the accused was
caused:
By continuance granted on the motion of the
accused or his counsel, or by concurrence of
the accused or his counsel in such a motion by
the attorney for the Commonwealth, or by the
failure of the accused or his counsel to make a
timely objection to such a motion by the
attorney for the Commonwealth, or by reason of
his escaping from jail or failing to appear
according to his recognizance.
The General District Court made its probable cause
determination on June 8, 1998. Gregory argues that, absent
agreement or waiver, the Commonwealth was required to try him
13
on or before November 7, 1998 or his prosecution would be
barred on the burglary offenses. Gregory maintains that there
was no agreement to continue the case, nor was there an
effective waiver of his speedy trial rights. The Commonwealth
argues that a waiver contemplated by Code § 19.2-243(4)
occurred at the hearing on October 19, 1998. We agree with
the Commonwealth.
We recently restated that “[w]hen a defendant requests,
agrees to, or acquiesces in an order that effectively
continues a case, the five-month speedy trial period of Code
§ 19.2-243 is tolled during the time reasonably specified by
the court to carry out the terms of its order.” Heath v.
Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908 (2001).
Accordingly, because Gregory, with the benefit of advice of
counsel, agreed to a continuance of the trial date or failed
to object to the Commonwealth’s request for a continuance, the
period of time involved does not count in the computation of
time for compliance with the requirements of Code § 19.2-243.
On October 19, 1998, all seven charges against Gregory
were before the court for motions. Gregory and Tondrowski
were present; Morgan was not. According to the court orders
in the record of this case, on that date, Gregory was
represented on all seven charges by both Morgan and
Tondrowski.
14
The main purpose of the hearing as announced by the
Commonwealth’s Attorney was for Gregory to waive his rights to
a speedy trial. Tondrowski’s response assured the trial court
of his understanding that Morgan had conferred with Gregory on
the subject of speedy trial waiver when he stated, “it’s my
understanding from Mr. Morgan that Mr. Gregory is prepared to
waive the speedy trial rights.” There was no distinction made
between burglary offenses and murder offenses in this
colloquy.
The trial court proceeded to set the trial dates for each
set of offenses separately. Upon selection of February 5,
1999, Tondrowski expressed concern, not about waiver of speedy
trial rights, but about the availability of February 5, 1999
on Morgan’s calendar. Such an understanding is consistent
with the context of the exchange between Tondrowski and the
trial court. Tondrowski had already communicated Morgan’s
agreement concerning waiver of speedy trial rights. The only
remaining issue for discussion was the particular date for
trial. Understandably, Tondrowski was not aware of Morgan’s
availability on February 5, 1999. The trial court set the
date for the trial of the burglary offenses for February 5,
1999 and then set the trial of the murder offenses for
February 22, 1999.
15
After determining both trial dates, the trial court
addressed the speedy trial issue again. This colloquy made no
distinction between burglary offenses and murder offenses.
Having previously established that Morgan had discussed speedy
trial issues with Gregory, the trial court focused upon
Tondrowski’s consultation with Gregory.
When asked if he had consulted with Gregory concerning
“waiver of speedy trial,” Tondrowski requested permission to
confer with Gregory. The transcription in the record recites,
“Mr. Tondrowski confers off the record with Defendant
Gregory.” When the hearing resumed, rather than directly
answering the trial court’s question about his own
consultation with Gregory, Tondrowski reconfirmed Morgan’s
consultation with Gregory on the subject. Tondrowski again
stated, “my client is prepared to go forward with the waiver.”
The trial court asked Gregory if what Tondrowski said was
correct. Confirming that it was correct, Gregory was asked
directly, “[y]ou wish to waive your right to speedy trial?”
He responded, “[y]es, sir.” Once again the trial court turned
to Tondrowski and asked, “[a]nd, Mr. Tondrowski, having
discussed that with your client, you would concur in his
waiver?” Tondrowski answered, “I would concur, yes.”
Despite his later disclaimer, Tondrowski was counsel of
record for Gregory on all seven charges on October 19, 1998.
16
More importantly, he acted as counsel to Gregory concerning
speedy trial waiver during the hearing. The trial court order
memorializing the rulings on October 19, 1998 specifically
references all seven charges and with respect to all charges,
expressly states: “The attorney for the defendant waived the
right to a speedy trial.”
We review the same trial record of the hearing on October
19, 1998 that was available to the Court of Appeals. Upon
review of that record we hold that the Court of Appeals erred
in determining that Gregory was not asked whether he wished to
waive his speedy trial rights on the burglary offenses, and
further erred in determining that Gregory was not represented
by counsel on those charges. Because the period from October
19, 1998 to February 1, 1999 does not count toward the five-
month period prescribed by Code § 19.2-243, Gregory was tried
in compliance with the speedy trial statute.
III. Admissibility of January 16, 1998 Statements
Gregory argues that he was subjected to a custodial
interrogation on January 4, 1998. He maintains that during
the interrogation he clearly and unequivocally invoked his
right to counsel. According to Gregory, police officers did
not honor his request and continued to question him. After a
break in custody, police officers initiated a second
interrogation of Gregory on January 16, 1998. Gregory argues
17
that the trial court and the Court of Appeals erred in
permitting the Commonwealth to introduce into evidence the
statements he made on January 16, 1998, in violation of the
rule established in Edwards.
The Commonwealth maintains that Gregory was not in
custody during the initial interrogation on January 4, 1998,
and furthermore, that Gregory did not clearly and
unequivocally invoke his right to counsel. Even if the
January 4, 1998 interrogation was custodial and Gregory
requested counsel, the Commonwealth argues that a break in
custody renders the Edwards rule inapplicable to the January
16, 1998 interrogation.
Edwards “established a second layer of prophylaxis for
the Miranda right to counsel. . . .” McNeil v. Wisconsin, 501
U.S. 171, 176 (1991). The well-known rights provided by
Miranda, 384 U.S. at 473-74, for a suspect in custody include:
“If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease. . . . If the individual states that
he wants an attorney, the interrogation must cease until an
attorney is present.” Edwards extended these principles to
subsequent interrogation, holding that, “. . . an accused,
. . . , having expressed his desire to deal with the police
only through counsel, is not subject to further interrogation
18
by the authorities until counsel has been made available to
him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards, 451 U.S. at 484-85. In Minnick v. Mississippi, 498
U.S. 146, 153 (1990), the Court clarified Edwards to require
that “when counsel is requested, interrogation must cease, and
officials may not reinitiate interrogation without counsel
present, whether or not the accused has consulted with his
attorney.” Prior consultation with counsel is not a
substitute for counsel’s presence during interrogation. Id.
The underlying concern of Miranda, Edwards, and their
progeny is the coercive atmosphere of custodial interrogation
and the state of mind of the suspect. As the Court stated in
Arizona v. Roberson, 486 U.S. 675, 681 (1988):
Thus, the prophylactic protections that the
Miranda warnings provide to counteract the
“inherently compelling pressures” of custodial
interrogation and to “permit a full opportunity
to exercise the privilege against self-
incrimination,” are implemented by the
application of the Edwards corollary that if a
suspect believes that he is not capable of
undergoing such questioning without advice of
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.
[citation omitted].
19
The right involved is the Fifth Amendment right against self-
incrimination rather than the Sixth Amendment right to
counsel. The prophylaxis of Miranda and Edwards provides the
right to have counsel present during interrogation as an
additional safeguard in the exercise of the right against
self-incrimination. In contrast to the Sixth Amendment right
to counsel which is offense-specific, the Fifth Amendment
right against self-incrimination is not offense-specific.
Roberson, 486 U.S. at 685. The Miranda-Edwards line of cases
“focuses on the state of mind of the suspect and not of the
police,” and “there is no reason to assume that a suspect’s
state of mind is in any way investigation-specific.” Id. at
687, 684.
The Edwards rule does not apply unless the prior
interrogation was custodial and during that custodial
interrogation, the suspect clearly and unequivocally invoked
his right to counsel. The Court of Appeals did not decide the
question of custody and invocation of right to counsel.
Rather, the Court of Appeals utilized a harmless error
analysis suggesting that nothing inculpatory came from the
January 4, 1998 interrogation. However, it is not the fruits
of the investigation that are at issue; rather, it is the
coercive atmosphere of the custodial interrogation itself.
20
We will assume without deciding that Gregory was in
custody while being interrogated on January 4, 1998 and that
he sufficiently invoked his right to counsel during that
interview. On January 16, 1998, Gregory was arrested for the
burglary offenses and was taken to the same interrogation room
used on January 4, 1998. The interrogation was not initiated
by Gregory.
The sole assignment of error concerning this matter is
stated as follows: “The Court of Appeals erred in holding that
the Edwards rule did not prohibit police-initiated
interrogation on January 16, 1998.” Although the issue has
never been presented to the United States Supreme Court, much
has been made of dicta in Justice Scalia’s majority opinion in
McNeil:
If the police do subsequently initiate an
encounter in the absence of counsel (assuming
there has been no break in custody), the
suspect’s statements are presumed involuntary
and therefore inadmissible as substantive
evidence at trial, even where the suspect
executes a waiver and his statements would be
considered voluntary under traditional
standards. This is “designed to prevent police
from badgering a defendant into waiving his
previously asserted Miranda rights.”
McNeil, 501 U.S. at 177 (citation omitted). Without some
limitation upon the Edwards rule, such as consideration of a
break in custody, its prohibition upon subsequent police-
initiated interrogation illogically extends into perpetuity.
21
As Justice Scalia noted, “[t]he Edwards rule, moreover, is not
offense specific: Once a suspect invokes the Miranda right to
counsel for interrogation regarding one offense, he may not be
reapproached regarding any offense unless counsel is present.”
McNeil, 501 U.S. at 177. This difficulty with the Edwards
analysis was previously the subject of Justice Scalia’s
observations in Minnick, wherein he noted:
In this case Minnick was reapproached by the
police three days after he requested counsel,
but the result would presumably be the same if
it had been three months, or three years, or
even three decades. This perpetual irrebuttable
presumption will apply, I might add, not merely
to interrogations involving the original crime,
but to those involving other subjects as well.
Minnick, 498 U.S. at 163 (J. Scalia, dissenting).
Although the concern of Miranda, Edwards, and their
progeny is the coercive circumstances of custodial
interrogation and the state of mind of the suspect, it makes
little sense to establish once and forever such circumstances
and state of mind without consideration of intervening factors
in the application of the Edwards rule. Such an eminently
reasonable interpretation was developed by the United States
Court of Appeals for the Tenth Circuit in United States v.
Bautista, 145 F.3d 1140, 1150 (10th Cir. 1998), wherein the
court stated:
Edwards is premised on the inherently coercive
nature of custodial interrogation and is
22
designed to prevent the authorities from
badgering a suspect in custody after the
suspect has invoked his Miranda right to have
an attorney present during questioning.
Therefore, . . . in order for Edwards to apply,
the suspect must be in custody from the time he
invokes his right to the time when the
subsequent interrogation is initiated. If
custody is broken, especially for a lengthy
period of time, the inherently coercive nature
of custody itself is diminished and there is
little to no risk of badgering by the
authorities. This is not to say that the
police can circumvent Edwards by temporarily
releasing a suspect for a short period of time
and then reacquiring him. Whether a break in
custody is sufficient to remove a suspect’s
request for counsel from the ambit of Edwards
must be evaluated under the totality of the
circumstances.
At the beginning of the subsequent interrogation on
January 16, 1998, police gave Gregory Miranda warnings orally
and in writing and he executed a “waiver form” indicating that
he was aware of his right to counsel. There is no issue
concerning voluntariness. Gregory voluntarily confessed to
the murder offenses during the subsequent interrogation.
Considering a six-day break in custody, the court in Bautista
held that the subsequent interrogation did not violate the
rule in Edwards. Similarly, under the circumstances presented
in this case, we hold that the twelve-day break in custody
renders the rule in Edwards inapplicable to Gregory’s
subsequent interrogation. The Court of Appeals, although on
23
other grounds, did not err in affirming Gregory’s convictions
on the murder offenses.
IV. Conclusion
For the reasons stated, the judgment of the Court of
Appeals concerning the burglary offenses will be reversed and
vacated and the judgment of the trial court will be
reinstated. The judgment of the Court of Appeals concerning
the murder offenses will be affirmed.
Record No. 010636 – Reversed and vacated.
Record No. 011028 – Affirmed.
24