COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
TAVARIO SHAMONT GATES
OPINION BY
v. Record No. 0547-98-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tavario Shamont Gates appeals his convictions of murder of
James Dixon and malicious wounding of Thomas Redford. He
contends that the trial court erred by denying his motion to
suppress statements he made to the police. We find that the
police were not interrogating the defendant when he made the
statements. Accordingly, we affirm the convictions.
The victim died of multiple gunshot wounds inflicted while
he sat in his car on April 27, 1997. Redford, who sat in the
front passenger seat, was also shot. Four months after the
shooting, the police arrested the defendant on an unrelated
charge. He initially waived his Miranda rights and talked to
the police, but then he asked for an attorney, and the
questioning ceased. During the interview, the defendant
mentioned that he had heard about the James Dixon murder but
denied any involvement in it.
Five days later, the police charged the defendant with the
instant offenses and obtained arrest warrants. Two detectives
brought the defendant to a police interview room to execute the
new warrants. They did not advise the defendant of his Miranda
rights because they were only planning to serve the warrants and
were not planning to interrogate him. The usual police practice
was to serve murder warrants in an interview room to keep the
accused out of the public eye and away from distractions.
Once in the room, one of the detectives told the defendant
that he was under arrest for the murder of James Dixon, and he
began reading the warrant to the defendant. As he read, the
defendant became angry and upset, interrupted the detective, and
said, "look, if y'all want to know the truth, I am going to tell
you the truth." The detective started taking notes as the
defendant continued to talk about the murder. In the statements
he made, the defendant admitted that he was at the scene of the
shooting, but he denied shooting either victim. Neither
detective asked the defendant to make a statement, asked him any
questions, or made any comment about the evidence against him.
If the detectives interrogated the defendant, any
statements to them would be suppressed because they did not
advise him of his rights under Miranda v. Arizona, 384 U.S. 436,
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479 (1966). Interrogation includes when "a person in custody is
subjected to either express questioning or its functional
equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980).
The trial court specifically found that the detectives did
not question the defendant. 1 The evidence of the Commonwealth
supports this finding. The defendant’s testimony to the
contrary does not dispel the finding. The credibility of the
witnesses and the weight to be accorded their testimony are
matters solely for the fact finder. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The police did not interrogate the defendant by subjecting him
to express questioning.
1
In denying the motion to suppress, the trial court stated:
[T]he Court doesn't have any problem with
the case. The Court doesn't believe the
police officers or the detectives asked any
questions. It's not unusual to take them
back in the interview room to serve them
with warrants to keep them out of the public
eye and for distraction. So, they took him
back there, were reading warrants to him,
and he started talking and the detectives
listened to him a few minutes, took out his
pad and wrote it down. To suppress this
would be ridiculous. Here's a free
statement given by an individual without any
interrogation. And to say that that would
not be admissible is contrary to common
sense.
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Though they asked no express questions, the statements must
be suppressed if the detectives’ conduct was the functional
equivalent of questioning. The United States Supreme Court
defined “functional equivalent” as “any words or actions on the
part of the police that the police should know are reasonably
likely to elicit an incriminating response from a suspect.”
Innis, 446 U.S. at 301. The test is "'whether an objective
observer would view an officer's words or actions as designed to
elicit an incriminating response.'" Timbers v. Commonwealth, 28
Va. App. 187, 196, 503 S.E.2d 233, 238 (1998) (quoting Blain v.
Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988)).
If a statement is "not foreseeable, then it is volunteered."
Blain, 7 Va. App. at 15, 371 S.E.2d at 841.
We conclude that there was no functional equivalent of
questioning. The detective stated the charges and began reading
the warrant. They were unprepared to record or memorialize any
statements. They did not have a tape recorder, a video camera,
or even a notepad. The detective, who made notes once the
defendant began talking, had to write on paper he retrieved from
the defendant’s file folder. Their actions were not "reasonably
likely to elicit an incriminating response." Innis, 446 U.S. at
301.
The room where the detectives executed the warrants did
not, by itself, constitute a functional equivalent of
interrogation. It was common for detectives to serve warrants
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in an interview room. Even if it amounted to “subtle
compulsion,” as the defendant argues, an interview room was not
reasonably likely to elicit incriminating responses. Neither
did it create a situation that the detectives should have known
would produce incriminating responses. See id. at 303.
No evidence suggests that the detectives anticipated the
defendant would react by making statements. Their sole purpose
was to execute the new warrants. Interrogation does not include
"words or actions by the police which are normally attendant to
arrest and custody." Wright v. Commonwealth, 2 Va. App. 743,
746, 348 S.E.2d 9, 12 (1986). Accord Pennsylvania v. Muniz, 496
U.S. 582, 603-04 (1990); King v. Commonwealth, 243 Va. 353, 360,
416 S.E.2d 669, 472-73 (1992) (when law enforcement's stated
purpose of encounter with defendant is entirely legitimate, to
obtain forensic samples, and they did not deviate from that
purpose, there was no "interrogation" (citing Miranda and
Edwards v. Arizona, 451 U.S. 477 (1981))).
The detectives did not interrogate the defendant either by
asking express questions or by actions that were the functional
equivalent to express questions. When the defendant volunteered
statements to them, they were not required to ignore what they
were hearing. See Jenkins v. Commonwealth, 244 Va. 445, 453,
423 S.E.2d 360, 365 (1992). The trial court did not err when it
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denied the motion to suppress the statements. Accordingly, we
affirm the convictions.
Affirmed.
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Benton, J., dissenting.
Detective David E. Burt testified at trial that he was the
chief homicide investigator of the murder of James Dixon, which
occurred April 27, 1997. During the course of his
investigation, he "developed Tavario Gates as a suspect," and he
"arrest[ed] Gates on August 28, 1997." Detective Burt testified
that after he read Miranda warnings to Gates, the following
events occurred during a lengthy custodial interrogation in the
detective division:
Q Did he decide to waive those rights?
A Yes, he did.
Q What did you ask him and what did he tell
you about this murder?
A He denied any involvement.
Q Were you specific when you were talking
about it?
A Yes, I was.
Q He said what exactly?
A He stated that he didn't know anything
about, he had heard about it.
Q But, he didn't know anything about it?
A Didn't know anything about it or who done
it.
Q Did you see him five days later on
September the 3rd, 1997?
A Yes, I did.
Q Were you giving him some papers that day?
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A Yes, I was. 2
The evidence also proved that during the questioning on
August 28, which lasted an hour, Gates attempted to terminate
the questioning by requesting a lawyer. His initial request was
ignored. Only after he made a second request for a lawyer was
the interview terminated. At the suppression hearing, Detective
Burt testified that although he had given Gates the Miranda
warnings on August 28 and had questioned Gates, he was not
present in the room when Gates requested a lawyer. However,
before September 3, Detective Burt learned from another
detective that Gates had requested a lawyer during the August 28
interrogation.
Several days after the August 28 interrogation, Detective
Burt secured a warrant charging Gates with the murder of Dixon.
Detective Burt testified that on September 3, he called the jail
and arranged to have Gates transferred from the jail so that he
could serve arrest warrants on Gates concerning the Dixon
matter. Detective Burt testified that he did not serve the
arrest warrant on Gates in the jail or in the detention center
because he wanted to use "an area that was more comfortable for
2
Detective Burt's testimony clearly establishes that after
Gates was arrested on August 28, he questioned Gates concerning
the murder of Dixon. The record also indicates that five days
after Detective Burt served an arrest warrant on Gates for the
murder of Tracy Lynn Rollings, he served the warrant on Gates
for the murder of Dixon.
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both of us, for [Gates] and [Burt]." He decided to serve the
warrants in the detective division. Detective Burt
acknowledged, however, that taking a jailed prisoner to the
detective division posed security problems. He testified that
two detectives were present for the serving of the warrant
because "we do have policies and procedures about bringing
prisoners into our detective division. We have civilian
personnel down there and we make all efforts to keep them safe."
Despite those safety concerns, Detective Burt intended to take
Gates to the room where the detectives first interrogated Gates
on August 28, when Gates had twice requested a lawyer before the
interview was stopped. Contrary to the trial judge's finding,
neither detective testified that this was done to shield Gates,
who was then a prisoner, from the public eye or from
embarrassment of being served in public with a warrant.
Detective Woody testified that the city jail personnel
delivered Gates to "the detention center . . . in the city lock
up." He and Detective Burt then took Gates, who was handcuffed,
"inside the detective division to the interview room." They saw
that the interview room was occupied and then took Gates "to
another room that was back in the back." When Detective Woody
was asked whether this happened on many occasions, he responded,
"I have done it on many occasions, yes." However, Detective
Woody also testified he had no knowledge that Gates had said on
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August 28 that he wanted a lawyer and did not want to talk to
the police.
Detective Burt testified that as he began "filling out" and
reading the arrest warrants, Gates became angry. Then the
following occurred:
[Gates] made a statement to the fact that he
was tired of me keep coming and asking him
to come down from the jail. He said I told
y'all before I ain't have nothing else to
say. And, he was -- began to become angry.
And, as I began to fill out the warrant
itself he stated, you know, what are these
for? And, I told him that they are
additional arrest warrants. I explained
that to him and I began to read them to him
at that time. And, then he began to
interrupt me and stated, look, if y'all want
to know the truth I am going to tell you the
truth. So, as I continued to execute the
warrant that's when he began to make a
statement.
Detective Burt testified that he "grabbed a couple of sheets of
paper . . . in [a] folder and began to write" as Gates talked
about the Dixon incident. Detective Burt also testified that as
Gates was talking another detective entered the room and said he
had "additional charges, charges perhaps capital murder on him."
Citing Arizona v. Roberson, 486 U.S. 675 (1988), and
Edwards v. Arizona, 451 U.S. 477 (1981), Gates correctly asserts
that when he exercised his right to counsel during the August
interrogation, he was protected from further interrogation or
"talks" initiated by the police unless his counsel was present.
In Edwards, the Supreme Court held "that an accused, . . .
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having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges,
or conversations with the police." 451 U.S. at 484-85. The
Court in Roberson held that Edwards applies even when the police
interrogate an accused who has invoked his or her right to
counsel and the interrogation concerns an investigation separate
from the initial interrogation. See Roberson, 486 U.S. at
682-85. The Court explained that Edwards is violated even if
the police recite the Miranda warning before subsequent
interrogations, see Roberson, 486 U.S. at 686, and even if the
accused fails to meet with his or her attorney, see Minnick v.
Mississippi, 498 U.S. 146, 153 (1990). Simply put, the police
"may not reinitiate interrogation without counsel present." Id.
The record clearly establishes that Gates did not initiate
the meeting where he made his statement and his lawyer was not
present. Instead, at the behest of Detective Burt, Gates was
taken to the interrogation room in handcuffs and under guard.
Therefore, Edwards bars the admission of Gates' statement.
The Commonwealth argues, however, that Gates' statement is
admissible because Gates was not induced by interrogation to
make the statement. Indeed, Detective Burt testified repeatedly
that he did not intend to ask Gates questions. However, not
only does this argument fail to address Edwards and its progeny,
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it overlooks the fact that the intent of the investigating
officer is irrelevant. "A requirement of actual proof that
'questioning . . . was intended or designed to produce an
incriminating response' . . . is contrary to the Supreme Court's
admonition that the definition of interrogation 'focuses
primarily upon the perceptions of the suspect, rather than the
intent of the police.'" Timbers v. Commonwealth, 28 Va. App.
187, 196, 503 S.E.2d 233, 237 (1998) (citations omitted).
Furthermore, I disagree with the proposition that what
transpired in the interrogation room was not interrogation or
its functional equivalent. The standard we must apply regarding
interrogation is as follows:
[T]he Miranda safeguards come into play
whenever a person in custody is subjected to
either express questioning or its functional
equivalent. That is to say, the term
"interrogation" under Miranda refers not
only to express questioning, but also to any
words or actions on the part of the police
(other than those normally attendant to
arrest and custody) that the police should
know are reasonably likely to elicit an
incriminating response from the suspect.
The latter portion of this definition
focuses primarily upon the perceptions of
the suspect, rather than the intent of the
police. This focus reflects the fact that
the Miranda safeguards were designed to vest
a suspect in custody with an added measure
of protection against coercive police
practices, without regard to objective proof
of the underlying intent of the police. A
practice that the police should know is
reasonably likely to evoke an incriminating
response from a suspect thus amounts to
interrogation. But, since the police surely
cannot be held accountable for the
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unforeseeable results of their words or
actions, the definition of interrogation can
extend only to words or actions on the part
of police officers that they should have
known were reasonably likely to elicit an
incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980) (footnotes
omitted).
The Supreme Court noted that "[t]he concern of the Court in
Miranda was that the 'interrogation environment' created by the
interplay of interrogation and custody would 'subjugate the
individual to the will of his examiner' and thereby undermine
the privilege against compulsory self-incrimination." Innis,
446 U.S. at 299 (quoting Miranda, 384 U.S. at 457-58). The
Court then referenced several police interrogation techniques
that Miranda was specifically designed to address and described
these practices as follows:
The police practices that evoked . . .
concern [in Miranda] included several that
did not involve express questioning. For
example, one of the practices discussed in
Miranda was the use of line-ups in which a
coached witness would pick the defendant as
the perpetrator. This was designed to
establish that the defendant was in fact
guilty as a predicate for further
interrogation. A variation on this theme
discussed in Miranda was the so-called
"reverse line-up" in which a defendant would
be identified by coached witnesses as the
perpetrator of a fictitious crime, with the
object of inducing him to confess to the
actual crime of which he was suspected in
order to escape the false prosecution.
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Innis, 446 U.S. at 299 (citations omitted). Because of the
Supreme Court's concern with such practices, it has consistently
held that "custodial interrogation for purposes of Miranda
includes both express questioning and words or actions that
. . . the officer knows or reasonably should know are likely to
'have . . . the force of a question on the accused,' and
therefore be reasonably likely to elicit an incriminating
response." Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)
(citation omitted); see Innis, 446 U.S. at 300-01.
The technique used by Detective Burt to extract Gates'
statement is substantially similar to those described in Innis.
The technique is founded on the understanding that an accused,
when presented with accusations that he or she committed a
crime, is likely to make a statement with the goal of either
mitigating or rationalizing his or her guilt. In making a
statement, however, the accused often provides information
which, when viewed in context with information obtained by
police from other sources, may prove the accused guilty. By
moving Gates to the same area where Gates was previously
interrogated, informing Gates that he was being charged with
murder, and mentioning in Gates' presence that other charges,
including capital murder, could be brought against Gates, the
detective's procedure had the same effect as the "reverse
line-ups" discussed in Miranda and noted in Innis. The effect
was to place Gates in an interrogation setting similar to the
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previous session where he was twice required to demand an
attorney. The procedure invoked Gates' ire and led to the
exploitation of his ire.
The record clearly establishes that the detectives had no
administrative reason to take Gates from the jail to a room in
the back part of the detective division to serve an arrest
warrant on him. Detective Burt was not the person who
fingerprinted or photographed arrestees. No evidence proved
that those functions occurred in the detective division. When
the sheriff's department delivered Gates from the jail to the
city "lock up," Gates was in a place where serving the warrant
was convenient. No evidence proved the "lock up" was a place in
the "public eye." Furthermore, safety issues militated against
moving Gates from the "lock up." Detective Burt had to take the
precaution of having another detective with him because of the
security concern that arises from taking a jailed person into
the detective division of the police headquarters.
Clearly, Detective Burt wanted to "talk" to Gates in a
setting that was "comfortable." He testified as follows:
Q You took him down, you had the warrants
charging him with the murder of James Dixon?
A That's correct.
Q And, you had to do some paperwork,
fingerprinting, and other associated police
business in order to serve the warrants?
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A Well, the booking process,
fingerprinting, photographing, is actually
done by the sheriff's department.
Q You still had some -- you had to talk to
him --
A Right.
Q -- a little bit about some -- not about
the case but --
A I had had all this information from a
previous situation.
Q Okay. You took him back to an interview
room to do some, some work; did you not?
A That's correct.
Q And, Mr. Gates became upset when you told
him he had been charged?
A That's correct, he did.
Detective Burt knew that Gates had been interrogated in the
detective division for an hour on August 28 about the Dixon
murder and other issues. He knew Gates had invoked his right to
counsel. Indeed, the record indicates that when Gates was first
questioned, Gates twice had to ask for a lawyer before the
police honored his request and ceased the interrogation. Taking
Gates from the jail to a back room in the detective division to
be in a "comfortable" place to "talk" without the presence of
his attorney cannot be justified by any administrative needs of
the police. When Detective Burt had Detective Woody accompany
him as he attempted to "talk" to Gates about "all this
information from a previous situation," he employed a "practice
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[that was] . . . designed to elicit an incriminating response
from the accused." Innis, 446 U.S. at 301-02 n.7.
In the absence of any administrative justification for the
detective's actions, I would hold that Detective Burt should
have reasonably expected that his "actions . . . [would] likely
. . . 'have . . . the force of [an interrogation] on [Gates],'
and therefore be reasonably likely to elicit an incriminating
response." Muniz, 496 U.S. at 601 (citation omitted). The
Supreme Court explicitly has held that "the purpose behind [the]
decisions in Miranda and Edwards . . . [was to prevent]
government officials from using the coercive nature of
confinement to extract confessions that would not be given in an
unrestrained environment." Arizona v. Mauro, 481 U.S. 520,
529-30 (1987).
Because the detective improperly initiated these "talks"
and Gates' statements were made in response to the "functional
equivalent" of police interrogation, the statements should have
been suppressed. I dissent.
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