COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
LESLIE CHARLES QUINN
OPINION BY
v. Record No. 2393-96-2 JUDGE LARRY G. ELDER
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge
Shanon S. Echols for appellant.
(Richard Cullen, Attorney General; Daniel J.
Munroe, Assistant Attorney General, on
brief), for appellee.
Leslie Charles Quinn (appellant) appeals his convictions
of two counts of grand larceny. He contends the trial court
erred when it denied his motion to suppress two incriminating
statements he made at different times to investigators from
separate jurisdictions. For the reasons that follow, we reverse
and remand.
I.
FACTS
In the early morning hours of March 18, 1996, a magistrate
issued a warrant to search appellant's home in order to seize
evidence related to numerous burglaries appellant was suspected
of having committed. Investigator Jack Elliott and other
officers of the Goochland County Sheriff's Office executed the
warrant. The officers seized numerous items they believed were
stolen property and arrested appellant. Following his arrest,
appellant asked to meet with an attorney before communicating
further with any of the officers.
On March 19, Keith Waldrop was appointed to represent
appellant on one charge of breaking and entering a trailer in
Goochland County.
The record indicates that appellant remained in custody
continuously from the date of his arrest through his sentencing
on September 27. Prior to April 9, Investigator Elliott
approached appellant "once or twice" and asked if he was "ready
to make a statement." Appellant responded by telling the
investigator that he "wanted [his] attorney present before [he]
made any kind of a statement." The record does not indicate that
appellant ever met with Mr. Waldrop during this time.
In the morning of April 9, Investigator Elliott visited
appellant in his jail cell and told appellant that he would "like
to ask him a few questions." The investigator moved appellant
from his cell to a vacant office for the meeting. Investigator
Elliott began the meeting by advising appellant of his Miranda
rights. The investigator then asked appellant if he "had a
lawyer appointed to him yet." Appellant told the investigator
that Mr. Waldrop had been appointed to represent him.
Investigator Elliott explained to appellant that Mr. Waldrop had
been appointed to represent him on a single charge of breaking
and entering in Goochland County and not with regard to other
charges or "possible charges" in Goochland or other counties.
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The investigator told appellant that he did not intend to speak
with appellant about the charge for which Mr. Waldrop had been
appointed and that if appellant desired the assistance of counsel
prior to being interrogated, he needed to "re-invoke" his Miranda
right to counsel. Investigator Elliott later testified exactly
what he told appellant:
[I] explained to him that my understanding of
the law is that whenever he invoked his
Miranda warning the night he was arrested,
that no one was allowed to question him at
that point about that particular charge or
any other charge that he might be involved
in. Once he went to court, he was appointed
a lawyer by the Court for that particular
charge. He was not charged with another
crime. Therefore, my understanding of the
law was that his charge then became lawyer
charge specific and if he wanted to invoke
his Miranda warning on any other conversation
we had, he had to re-invoke.
Following the investigator's explanation of appellant's right to
legal assistance, appellant did not ask to consult with Mr.
Waldrop or any other attorney.
Appellant agreed to make a statement. Investigator Elliott
then questioned appellant about the items seized during the
search of his home. During this exchange, appellant disclosed
his involvement in burglaries and larcenies in both Goochland and
Fluvanna counties. Investigator Elliott asked appellant if he
would make a "formal statement" on tape. Appellant consented,
and, during his taped statement, admitted to stealing the
property at issue in this case which had been located in Fluvanna
County.
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The Goochland County Sheriff's Office informed the
authorities in Fluvanna County of appellant's statement. On
April 22, a Fluvanna County grand jury charged appellant with two
counts of grand larceny. On April 23, the trial court ordered
appellant moved from the James River Correctional Center to the
trial court for a hearing scheduled at 2:00 p.m. on April 25. At
1:20 p.m. on April 25, Investigator Albert Bryant of the Fluvanna
County Sheriff's Office approached appellant in a holding cell
near the trial court. After appellant was warned of and waived
his Miranda rights, he again confessed to taking the property at
issue in this case.
Appellant filed a motion to suppress numerous items of
evidence, including the statements he made to Investigator
Elliott on April 9 and to Investigator Bryant on April 25.
Appellant argued that these statements had been obtained in
violation of his right to counsel under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Following a
hearing, the trial court denied appellant's motion. The trial
court concluded that appellant never made a "specific request"
for counsel before making his statement to Investigator Elliott.
The trial court stated that "at best there was an equivocal
statement or ambiguous statement or some discussion about Mr.
Waldrop being appointed in another matter."
Appellant was subsequently tried and both of his statements
were admitted into evidence. The trial court convicted appellant
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of two counts of grand larceny.
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II.
WAIVER OF RIGHT TO COUNSEL UNDER MIRANDA
Appellant contends that the trial court erred when it denied
his motion to suppress the statements he made to Investigator
Elliott in Goochland County on April 9 and to Investigator Bryant
in Fluvanna County on April 25. He argues that these statements
should have been suppressed because the Commonwealth failed to
prove that he waived his Miranda right to counsel. Referencing
the so-called "Edwards rule," appellant asserts that the
Commonwealth did not prove that he waived his right to counsel
prior to making his statements because both statements were
obtained during interrogation that was initiated by the
investigators after he had previously invoked his Miranda right
to counsel. We agree.
A.
MIRANDA AND THE "EDWARDS RULE"
In order to insure that the Fifth Amendment right against
compulsory self-incrimination is protected during the custodial
interrogation of criminal suspects, the United States Supreme
Court established a series of "procedural safeguards" that law
enforcement authorities must adhere to when interviewing suspects
in their custody. See Davis v. United States, 512 U.S. 452, 457,
114 S. Ct. 2350, 2354, 129 L.Ed.2d 362 (1994) (citing Michigan v.
Tucker, 417 U.S. 433, 443-44, 94 S. Ct. 2357, 2363-64, 41 L.Ed.2d
182 (1974)); see also Mier v. Commonwealth, 12 Va. App. 827, 831,
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407 S.E.2d 342, 344-45 (1991). Compliance with these procedures
is a "prerequisite[] to the admissibility of any statement made
by a defendant" during custodial interrogation. Miranda, 384
U.S. at 476, 86 S. Ct. at 1629; see also Goodwin v. Commonwealth,
3 Va. App. 249, 252, 349 S.E.2d 161, 163 (1986).
Included among the safeguards established in Miranda is the
right of a suspect to have counsel present at any custodial
interrogation and to terminate the interrogation by invoking this
right. See Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S. Ct.
1880, 1885, 68 L.Ed.2d 378 (1981); Miranda, 384 U.S. at 469, 475,
86 S. Ct. at 1625, 1628; see also Correll v. Commonwealth, 232
Va. 454, 462, 352 S.E.2d 352, 356 (1987); Foster v. Commonwealth,
8 Va. App. 167, 173, 380 S.E.2d 12, 15 (1990). In order for a
defendant's statement to be admissible at trial, the Commonwealth
must prove that the defendant was informed of his Miranda right
to counsel, i.e., that he has the right to consult with a lawyer,
to have the lawyer present during interrogation and that, if the
defendant is indigent, a lawyer will be appointed to represent
him. See Miranda, 384 U.S. at 471, 473, 475, 86 S. Ct. at 1626,
1627, 1628; Green v. Commonwealth 223 Va. 706, 710, 292 S.E.2d
605, 607 (1982). If the interrogation continues without the
presence of an attorney, the defendant's statement is
inadmissible unless the Commonwealth proves by a preponderance of
the evidence that the defendant voluntarily, knowingly, and
intelligently waived his right to retained or appointed counsel.
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See Edwards, 451 U.S. at 482, 101 S. Ct. at 1884; Miranda, 384
U.S. at 475, 86 S. Ct. at 1628. See also Colorado v. Connelly,
479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L.Ed.2d 473 (1986);
Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718,
722-23 (1992).
In order to "prevent police from badgering a defendant into
waiving his previously asserted Miranda rights" and to "protect
the suspect's 'desire to deal with the police only through
counsel,'" the United States Supreme Court established the
"Edwards rule" as a "second layer of prophylaxis for the Miranda
right to counsel." See Davis, 512 U.S. at 458, 114 S. Ct. at
2355; McNeil v. Wisconsin, 501 U.S. 171, 176, 178, 111 S. Ct.
2204, 2208, 2209, 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494
U.S. 344, 350, 110 S. Ct. 1176, 1180, 108 L.Ed.2d 293 (1990).
Pursuant to Edwards and its progeny, once the defendant invokes
his Miranda right to counsel, all police-initiated interrogation
regarding any criminal investigation must cease unless the
defendant's counsel is present at the time of questioning. See
Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 491,
112 L.Ed.2d 489 (1990); Arizona v. Roberson, 486 U.S. 675, 683,
108 S. Ct. 2093, 2099, 100 L.Ed.2d 704 (1988); Edwards, 451 U.S.
at 484-85, 101 S. Ct. at 1885; see also Jackson v. Commonwealth,
14 Va. App. 414, 416, 417 S.E.2d 5, 6-7 (1992). If the police
initiate interrogation of a defendant after he has invoked his
Miranda right to counsel and before his counsel is present, "a
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valid waiver of this right cannot be established . . . even if he
has been advised of his rights." Edwards, 451 U.S. at 484, 101
S. Ct. at 1884-85; see Eaton v. Commonwealth, 240 Va. 236, 252,
397 S.E.2d 385, 395 (1990); Hines v. Commonwealth, 19 Va. App.
218, 221, 450 S.E.2d 403, 404 (1994). However, the Edwards rule
only applies to periods of continuous custody, and, if the
defendant is released from custody following the invocation of
his Miranda right to counsel, the Edwards rule does not bar
subsequent police-initiated interrogation. See Tipton v.
Commonwealth, 18 Va. App. 832, 834, 447 S.E.2d 539, 540 (1994). 1
Whether the Edwards rule renders a statement inadmissible is
determined by a three-part inquiry. Cf. Smith v. Illinois, 469
U.S. 91, 95, 105 S. Ct. 490, 492-93, 83 L.Ed.2d 488 (1984).
First, the trial court "must determine whether the accused
1
See also United States v. Barlow, 41 F.3d 935, 945-46 (5th
Cir. 1994); United States v. Hines, 963 F.2d 255, 257
(9th Cir. 1992); Dunkins v. Thigpen, 854 F.2d 394, 397
(11th Cir. 1988); United States ex rel. Espinoza v. Fairman, 813
F.2d 117, 125 (7th Cir. 1987); McFadden v. Garraghty, 820 F.2d
654, 661 (4th Cir. 1987); United States v. Geittmann, 733 F.2d
1419, 1429 (10th Cir. 1984); United States v. Skinner, 667 F.2d
1306, 1309 (9th Cir. 1982).
Although the United States Supreme Court has yet to
definitively address the issue of whether a break in custody
terminates the "Edwards effect" of a defendant's request for
counsel on subsequent police-initiated interrogation, dicta in
two of its cases suggest that continuous custody is a requirement
for application of the Edwards rule. See McNeil, 501 U.S. at
177, 111 S. Ct. at 2208 (stating that a suspect's statements
during post-invocation, police-initiated interrogation are
presumed involuntary "assuming there has been no break in
custody"); Roberson, 486 U.S. at 683, 108 S. Ct. 2093 (stating
that a suspect's initial request for counsel does not disappear
when the police approach him "still in custody" about a separate
criminal investigation).
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actually invoked his right to counsel" and whether the defendant
remained in continuous custody from the time he or she invoked
this right to the time of the statement. Id.; see Tipton, 18 Va.
App. at 834, 447 S.E.2d at 540. Second, if the accused has
invoked his or her right to counsel and has remained in
continuous custody, the statement is inadmissible unless the
trial court finds that the statement was made at a meeting with
the police that was initiated by the defendant or attended by his
lawyer. See Smith, 469 U.S. at 96, 105 S. Ct. at 493 (stating
that statement is admissible if made at a defendant-initiated
meeting); Minnick, 498 U.S. at 153, 111 S. Ct. at 491 (stating
that police "may not reinitiate interrogation without counsel
present"). Third, if the first two parts of the inquiry are met,
the trial court may admit the statement if it determines that the
defendant thereafter "knowingly and intelligently waived the
right he had invoked." Smith, 469 U.S. at 96, 105 S. Ct. at 493.
On appeal from a trial court's denial of a motion to
suppress, the burden is on the appellant to show that the trial
court's decision constituted reversible error. See Stanley v.
Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993).
We view the evidence in the light most favorable to the
prevailing party, granting to it all reasonable inferences fairly
deducible therefrom. See Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). We review the trial
court's findings of historical fact only for "clear error," but
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we review de novo the trial court's application of defined legal
standards to the particular facts of a case, such as
determinations of reasonable suspicion and probable cause. See
Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311
(1996); see also Ornelas v. United States, U.S. , , 116
S. Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). Whether a defendant
"invoked" his Miranda right to counsel during custodial
interrogation and whether he "waived" this right are determined
by applying judicially declared standards. See Davis, 512 U.S.
at 458-59, 114 S. Ct. at 2355 (standard for invocation); Moran v.
Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1140-41, 89 L.Ed.2d
410 (1986) (standard for waiver).
B.
THE APRIL 9 STATEMENT
We hold that the trial court erred when it declined to
suppress the statement made by appellant to Investigator Elliott
on April 9. The Edwards rule clearly applied to appellant's
incriminating statement made on April 9. Appellant previously
had invoked his right to counsel, remained in continuous custody
from the time of his request until the time of his statement, and
his statement was made at a meeting initiated by Investigator
Elliott at which appellant's counsel was not present. See Hines,
19 Va. App. at 221-22, 450 S.E.2d at 404-05.
The record established that appellant invoked his right to
counsel prior to April 9. See Davis, 512 U.S. at 459, 114 S. Ct.
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at 2355 (stating that the invocation must be sufficiently clear
so that "a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney").
Appellant testified that he "asked for an attorney" when he was
arrested on March 18, and Investigator Elliott testified that
appellant "invok[ed] his Miranda warnings the night he was
arrested." Although the trial court concluded that appellant
never made a "specific request" for counsel, the trial court's
reasoning indicated that it did not consider in its analysis
appellant's request for counsel on the night of his arrest.
The record also established that appellant remained in
continuous custody from the time of his arrest until the time he
made his statement. Appellant was arrested on March 18 and was
visited in his jail cell on April 9 by Investigator Elliott. In
addition, a series of custodial transportation orders and court
orders in the record indicate that appellant was incarcerated at
the James River Correctional Facility from April 23 through
September 27, the day his sentence was imposed. No other
evidence in the record sheds light on appellant's custodial
status during this time. Based on this evidence, we may infer
that no break occurred in appellant's custodial status following
his arrest.
In addition, the meeting with appellant on April 9 was
initiated by Investigator Elliott while appellant was still in
custody. In the morning of April 9, Investigator Elliott
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approached appellant in his jail cell and told appellant that he
wanted to ask him a few questions. He then moved appellant to
the vacant office where appellant eventually made his statement.
Nothing in the record indicates that appellant desired to speak
with Investigator Elliott prior to the investigator's visit.
Appellant's counsel was not present at any time during the
meeting. Although appellant was given and waived his Miranda
rights prior to making his statement, the fact that he had
earlier invoked his right to counsel precluded the Commonwealth
from proving a valid waiver of his rights at a meeting initiated
by the authorities at which his counsel was not present. See
Minnick, 498 U.S. at 153, 111 S. Ct. at 491, Edwards, 451 U.S. at
484-85, 101 S. Ct. at 1084-85. In addition, the fact that the
investigator asked appellant about crimes that had not been
previously discussed is of no moment because appellant's initial
request for counsel is deemed non-offense-specific. See
Roberson, 486 U.S. at 683, 108 S. Ct. at 2099.
Because the Edwards rule applied to the statement made by
appellant on April 9, the Commonwealth did not establish that
appellant waived his Miranda right to counsel prior to making the
statement. See Miranda, 384 U.S. at 476, 86 S. Ct. at 1629. For
these reasons, the trial court erred in refusing to suppress the
statement.
C.
THE APRIL 25 STATEMENT
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The admissibility of the April 25 statement raises an issue
of first impression in Virginia. We must determine whether the
Edwards rule bars admission of a statement made during an
interrogation initiated by an officer from a jurisdiction
different than the one in which the defendant initially requested
counsel. The uncertainty stems from the as yet unaddressed
effect of Roberson on Simmons v. Commonwealth, 225 Va. 111, 300
S.E.2d 918 (1983).
In Simmons, the defendant, an Army sergeant, was detained by
military authorities when, after an unauthorized absence from his
post, he informed them of a possible warrant for his arrest in
Fairfax County. Simmons, 225 Va. at 114, 115-16, 300 S.E.2d at
919, 920. Later in the day, a staff sergeant who was attempting
to verify that Simmons was both "AWOL" and wanted by authorities
in Fairfax, warned Simmons of his Miranda rights and asked
Simmons if he wanted an attorney. See id. at 116, 300 S.E.2d at
920. Simmons replied that he wanted an attorney. See id.
Simmons remained in custody until a Fairfax investigator arrived
to question him about a murder in Fairfax County. See id. at
116-17, 300 S.E.2d at 920. The Fairfax investigator, who did not
know of Simmons' earlier request for counsel, informed Simmons of
his Miranda rights. Simmons then signed a written waiver form,
see id. at 117, 300 S.E.2d at 920-21, and confessed to the
Fairfax murder. See id. at 117, 300 S.E.2d at 921. Following
another period of unbroken custody and another informed waiver of
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his Miranda rights, Simmons confessed again to the murder. See
id. at 117-18, 300 S.E.2d at 921.
The trial court denied Simmons' motion to suppress his
confessions. On appeal, the Virginia Supreme Court affirmed,
holding that the Edwards rule did not apply to Simmons'
confessions. See id. at 121, 300 S.E.2d at 923. The Court noted
that Simmons' initial request for counsel was made to a military
sergeant during the sergeant's investigation of Simmons' "status
with reference to the military law." See id. The Court reasoned
that because Simmons' confessions occurred during interrogation
by a different law enforcement officer who did not actually know
of Simmons' initial request for counsel and who questioned
Simmons about a different crime, Edwards did not bar the
admission of his confessions. See id.
In Roberson, the United States Supreme Court addressed the
issue raised in Simmons and reached a different conclusion.
Roberson was arrested on April 16 for burglary and, after being
informed of his Miranda rights, requested the assistance of
counsel. See Roberson, 486 U.S. at 678, 108 S. Ct. at 2096.
Roberson remained in custody until April 19, when he was
approached by "a different officer . . . about a different
burglary." See id. The officer, who was ignorant of Roberson's
earlier request for counsel, gave Roberson his Miranda warnings.
See id. Roberson subsequently confessed to the burglary. See
id.
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The trial court granted Roberson's motion to suppress and
the United State Supreme Court affirmed. See id. at 678-79, 108
S. Ct. at 2096-97. In its opinion, the Court rejected both
theories relied upon by the Virginia Supreme Court in Simmons to
limit the reach of the Edwards rule. First, the Court held that
the Edwards rule is not offense specific and that a defendant's
request for counsel during an interrogation about one crime bars
subsequent police-initiated interrogation about other suspected
criminal activity. See id. at 682-84, 108 S. Ct. at 2098-99.
Second, the Court held that an officer who initiates the
reinterrogation of a defendant without knowing of the defendant's
prior request for counsel is not relieved of complying with the
Edwards rule. See id. at 687, 108 S. Ct. at 2101. The Court
indicated that law enforcement authorities have a duty to inform
each other of prior invocations of the Miranda right to counsel
by suspects in their custody and that the Edwards rule requires
officers to ascertain prior to interrogation whether a suspect
has previously requested counsel. The Court stated:
[C]ustodial interrogation must be conducted
pursuant to established procedures, and those
procedures in turn must enable an officer who
proposes to initiate an interrogation to
determine whether the suspect has previously
requested counsel . . . . Whether a
contemplated reinterrogation concerns the
same or a different offence, or whether the
same or different law enforcement authorities
are involved in the second investigation, the
same need to determine whether the suspect
has requested counsel exists. The police
department's failure to honor that request
cannot be justified by the lack of diligence
of a particular officer.
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Id. at 487-88, 108 S. Ct. at 2101 (emphasis added). Based on the
use of the word "authorities" in this passage rather than
"officers" and the fact that the Court stated it was addressing a
conflict in state and federal cases that dealt with successive
interrogations by officers from separate jurisdictions, see id.
at 680 n.3, 108 S. Ct. at 2097 n.3, we conclude that the Court
clearly did not intend this aspect of the Roberson holding to be
limited by jurisdictional lines.
Based on our reading of these two cases, we hold that
Roberson renders Simmons no longer controlling. In Roberson, the
United States Supreme Court expressly rejected the reasoning
relied upon by the Virginia Supreme Court in Simmons. Contrary
to the holding of Simmons and pursuant to Edwards and its
progeny, under Roberson if a defendant requests counsel during
custodial interrogation and remains in continuous custody, any
subsequent waiver of his Miranda right to counsel obtained during
reinterrogation initiated by the authorities and held outside the
presence of his counsel is presumed to be involuntary. See
McNeil, 501 U.S. at 177-78, 111 S. Ct. at 2208. The fact that
the subsequent interrogation (1) was initiated by authorities
from another jurisdiction who did not actually know of the
defendant's prior request for counsel or (2) concerned a separate
criminal investigation does not preclude the application of the
Edwards rule. See Roberson, 486 U.S. at 687-88, 108 S. Ct. at
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2101. 2
We hold that the trial court erred when it denied
appellant's motion to suppress the statement made to Investigator
Bryant on April 25. Like the circumstances surrounding the April
9 statement, the record indicates that appellant invoked his
Miranda right to counsel on March 18 and remained in continuous
custody until he was approached by Investigator Bryant in a
holding cell on April 25. Investigator Bryant advised appellant
of his Miranda rights, and appellant waived his rights and made
the incriminating statement. Appellant's counsel was not present
during the interrogation. Because there was no break in
appellant's custodial status prior to this interrogation and
because it was initiated by Investigator Bryant and held outside
the presence of appellant's counsel, the Edwards rule mandates
suppression of the statement. Even though Investigator Bryant
2
We need not address the effect of Roberson on McFadden v.
Commonwealth, 225 Va. 103, 300 S.E.2d 924 (1983), a sister case
of Simmons, because McFadden is factually distinguishable. In
McFadden, the Virginia Supreme Court held that Edwards did not
preclude the admissibility of McFadden's confessions even though
they were made at post-invocation interrogations initiated by
investigators from different jurisdictions investigating
different crimes. See McFadden, 225 Va. at 110, 300 S.E.2d at
927-28. Although not mentioned by the Virginia Supreme Court in
its reasoning, the facts of McFadden indicate that McFadden was
twice released from custody after he requested counsel and before
the interrogation that led to his confessions. See id. at 106,
300 S.E.2d at 925. As the Fourth Circuit reasoned when it
affirmed the denial of McFadden's petition for a writ of habeas
corpus, these breaks in McFadden's custody mooted the "Edwards
effect" of his initial request for counsel on later
police-initiated interrogation. See McFadden v. Garraghty, supra
note 1, 820 F.2d at 661 (citing Skinner, supra note 1).
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was from a jurisdiction different from the officers who knew of
appellant's request for counsel, he knew of appellant's prior
contacts with the Goochland authorities. Pursuant to Roberson,
the investigator was required to exercise diligence prior to
interrogating appellant to determine whether appellant had
previously requested counsel. See Roberson, 486 U.S. at 687-88,
108 S. Ct. at 2101. This failure to honor appellant's request to
deal with the police only through counsel cannot be justified by
the lack of adequate procedures in place to inform officers
subsequently coming into contact with appellant of appellant's
prior request for counsel. See id. at 688, 108 S. Ct. at 2101.
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III.
HARMLESS ERROR
Next we must determine whether the admission of appellant's
statements in violation of the Edwards rule constituted
reversible error. See United States v. Cannon, 981 F.2d 785,
789-90 n.3 (5th Cir. 1993) (holding that Edwards violation can be
harmless); cf. Arizona v. Fulminante, 499 U.S. 279, 306-10, 111
S. Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991) (holding that
constitutional "trial errors," such as the admission of an
involuntary confession, can be harmless).
A federal constitutional error is harmless, and thus
excusable, only if it appears "beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained."
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 827-28,
17 L.Ed.2d 705 (1967); see also Fulminante, 499 U.S. at 296, 111
S. Ct. at 1257 (applying Chapman test to erroneously admitted
confession); Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991). The admission of evidence obtained
in violation of the federal constitution is reversible error if
"there is a reasonable possibility that the evidence complained
of might have contributed to the conviction." Fahy v.
Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L.Ed.2d
171 (1963); see Chapman, 386 U.S. at 24, 87 S. Ct. at 828
(stating that the Chapman test "do[es] no more than adhere to the
meaning of [Fahy]").
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We review the record in this case with an awareness of the
impact that a confession can have in a criminal trial.
A confession is like no other evidence.
Indeed, "the defendant's own confession is
probably the most probative and damaging
evidence that can be admitted against him.
. . . [T]he admissions of a defendant come
from the actor himself, the most
knowledgeable and unimpeachable source of
information about his past conduct.
Certainly, confessions have profound impact
on the jury, so much so that we may
justifiably doubt its ability to put them out
of mind even if told to do so." While some
statements by a defendant may concern
isolated aspects of the crime or may be
incriminating only when linked to other
evidence, a full confession in which the
defendant discloses the motive for and means
of the crime may tempt the [trier of fact] to
rely upon that evidence alone in reaching its
decision.
Fulminante, 499 U.S. at 296, 111 S. Ct. at 1257-58 (citations
omitted).
The court conducting a harmless-error inquiry
must appreciate the indelible impact a full
confession may have on the trier of fact, as
distinguished, for instance, from the impact
of an isolated statement that incriminates
the defendant only when connected with other
evidence.
Id. at 313, 111 S. Ct. at 1266 (Kennedy, J., concurring).
Based on our review of the record, we hold that the
erroneous admission of appellant's statements was not harmless.
Appellant's statements contained a comprehensive admission of
guilt that described in detail both his motive for taking the
stolen property and the means by which he committed the crimes.
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They also provided the only direct evidence in the record of
appellant's knowledge that the tools and equipment loaded onto
the truck by his son belonged to "another" and of his intent to
"permanently deprive" Messrs. Worley and Truslow of possession of
these items. See Bright v. Commonwealth, 4 Va. App. 248, 251,
356 S.E.2d 443, 444 (1987) (defining larceny as "the wrongful
taking of the goods of another without the owner's consent and
with the intention to permanently deprive the owner of possession
of the goods"). After balancing appellant's confessions, which
were both comprehensive and extremely probative, against the
comparatively weaker lawfully admitted evidence of his guilt, we
find a reasonable possibility that appellant's confessions
contributed to the trial court's verdict.
For the foregoing reasons, we reverse the convictions of two
counts of grand larceny and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
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