Opinion
Criminal Docket No.: CR17-2648
09-04-2018
Re: Commonwealth of Virginia v. Russell George Barrington
Anetra Robinson, Esq. Office of the Commonwealth's Attorney 800 E. City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Devon Paige, Esq. Rice, Paige, Pandya & Gregg 125 St. Paul's Boulevard, Suite 110 Norfolk, Virginia 23510
Anetra Robinson, Esq.
Office of the Commonwealth's Attorney
800 E. City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Devon Paige, Esq.
Rice, Paige, Pandya & Gregg
125 St. Paul's Boulevard, Suite 110
Norfolk, Virginia 23510 Dear Counsel:
As you know, the Defendant Barrington's Motion to Suppress was heard on July 5, 2018. Before the hearing, counsel submitted written argument in support and opposition to the motion. Having considered the memoranda, argument of counsel, and applicable case law, the Court will deny the motion.
The crux of this motion is whether the phone conversation facilitated by Det. Squyers, between Barrington, his mother and Squyers, after Barrington invoked his Miranda rights constituted the functional equivalent of an interrogation in violation of the Fifth and Sixth Amendments.
The facts adduced at the hearing can be summarized as follows: The Virginia Beach Police picked up Barrington, a juvenile, from his high school in Virginia Beach in connection with a homicide that occurred earlier that day in Norfolk. Norfolk Police took him into custody and Det. Cogswell advised him of his Miranda rights. Barrington asserted his rights under Miranda and declined to make a statement. Consequently, Det. Cogswell left the interview room. Two hours later, Det. Squyers went into the interview room and brought Barrington into the main conference room of the police operations center ("POC") to call his mother because he was a minor. Det. Squyers was aware that Barrington invoked his rights. Although Barrington had not made any request to speak to his mother, Det. Squyers was aware that his mother had called the POC several times earlier that day trying to get information about her son.
Det. Squyers stated that the purpose of the call was to advise Barrington's mother "of the charges and what [the] process would be, [and] where he would be going from this point." Det. Squyers utilized a speakerphone for the call and asserted that he was unaware that another detective was recording the conversation. The phone call lasted approximately ten minutes.
Analysis
Once Barrington invoked his right to counsel during interrogation, "all police-initiated interrogation regarding any criminal investigation must cease . . . 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." Potts v. Commonwealth, 35 Va. App. 485, 493, (2001) (quoting Quinn, 25 Va. App. at 710-11. In making the determination the court must engage in the following analysis:
1) The trial court must determine whether the accused "unequivocally" invoked his or her right to counsel.Id. (quoting Giles, 28 Va. App. at 532). In assessing the third prong of this test,
2) The trial court must determine whether the accused, rather than the authorities, initiated further discussion or meetings with the police
3) If the accused did initiate further discussions or conversations with the police, the trial court must then ascertain whether the accused knowingly and intelligently waived the previously invoked right to counsel.
the court must determine whether the statement is the product of an essentially free and unconstrained choice by its maker, or . . . whether the maker's will has been overborne and his capacity for self-determination critically impaired. In determining whether the waiver was knowing and intelligent, the court must examine the totality of the circumstances. Where a juvenile is involved, this includes evaluation of the juvenile's age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.Potts v. Commonwealth, 35 Va. App. 485, 495 (2001) (citations omitted) (quotations omitted) (emphasis added). "The totality of the circumstances also includes moral and psychological pressures to confess emanating from official sources." Morris v. Commonwealth, 17 Va. App. 575, 579 (1994) (citing Kauffmann v. Commonwealth, 8 Va. App. 400, 406 (1989).
1) Whether the accused "unequivocally" invoked his or her right to counsel.
Clearly, Barrington unequivocally invoked his right to counsel when he wrote "No" in response to the statement "I further state that I waive these rights and desire to make a statement" in the Norfolk Police Department Legal Rights Advice Form.
2) Whether the accused, rather than the authorities, initiated further discussion or meetings with the police
Neither the facilitation of a phone call between Barrington and his mother in the presence of Det. Squyers, or the limited participation of Det. Squyers in that conversation, constitutes the functional equivalent of an interrogation. Instead it was Barrington who initiated further discussions with the police after the call ended.
The term interrogation covers both express questioning and its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Absent an interrogation by the authorities, a suspect's self-initiated incriminating statements after invoking his or her Miranda rights would be admissible. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
The record reflects no express questioning of Barrington by Det. Squyers, and further that only one of the statements made by Det. Squyers in the 10 minute phone call was directed to Barrington. That statement was to merely inform him that he was going to the Juvenile Detention Center.
Providing information to explain the process to a suspect is also part of the booking process, and not subject to the Miranda prohibition. Dozier v. Commonwealth, 2008 Va. App. LEXIS 322, *7]. --------
The functional equivalent of questioning is defined as "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." Id. Words or actions that may be considered the functional equivalent of an interrogation are those that amount to "some sort of psychological ploy by the police." United States v. Blake, 571 F.3d 331, 341 (4th Cir. 2009) (quoting Arizona v. Mauro, 481 U.S. 520, 527 (1987)). However, this definition of interrogation only extends to those "words or actions on the part of the police officers that they should have known were reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 302. This will focus primarily "upon the perception of the suspect, rather than the intent of the police." Id. at 301.
In Mauro, the Supreme Court found that facilitating a meeting between the suspect and his wife after the wife insisted to talk to the suspect was not a psychological ploy, and hence it was not the functional equivalent of an interrogation. Mauro, 481 U.S. at 527-28. Similar to the case at hand, the meeting was recorded by the police, and took place between the suspect, his wife, and a detective. Id. at 527. The detective did not ask any questions during the meeting. Id. at 529. Furthermore, even though the police was aware of the possibility that the suspect would incriminate himself if allowed to speak to his wife, the Court held that this still did not constitute the functional equivalent of an interrogation because "officers do not interrogate a suspect simply by hoping that he will incriminate himself." Id. at 529.
Furthermore, declaratory descriptions of incriminating evidence do not invariably constitute the functional equivalent of an interrogation. U.S. v. Payne, 954 F.2d. 199, 202-03 (4th Circuit 1992). Hence, the exposure of criminal suspects to information that could be interpreted as evidence of guilt, such as informing the suspect that certain evidence has been discovered and would result in additional charges, is permissible and not considered the functional equivalent of an interrogation. Adderly v. Commonwealth, 2010 Va. App. Lexis 102 at *23-25.
Facilitating and remaining present for the speakerphone conversation between Barrington and his mother, does not constitute the impermissible initiation of discussions by Det. Squyers. Like the police in Mauro, where the officer did not ask any questions during a similar meeting, Det. Squyres did not direct any questions to Barrington. Instead, Det. Squyres initial involvement in the conversation was to explain where Barrington was going to be sent, and what being "booked" meant. He later informed the mother of the charges, which is considered part of routine process and not an interrogation.
Later, Det. Squyres stated that there were some people "pointing at Barrington as the one who pulled the trigger." This constitutes a declaratory description of incriminating evidence like the one in Adderly, where the police informed the suspect that more evidence had been discovered and that additional charges would be forthcoming. Det. Squyers followed this up by repeatedly informing the mother that they (law enforcement) were no longer allowed to talk to Barrington, and that in the event that Barrington re-engaged them, they would call her to let her know. Even if Det. Squyers made such statements in the hope that Barrington would re-engage with them, that mere hope would not make these statements part of a psychological ploy and consequently, the functional equivalent of an interrogation. Especially because Det. Squyers constantly reminded Ms. Barrington that her son was not obliged to talk to them.
The functional equivalent of questioning is defined as "any words or actions on the part of the police "should know" are reasonably likely to elicit an incriminating response. [Emphasis added].
The response of Barrington's mother reflects her deep maternal concern for her son after receiving the shocking news that her son had been arrested for murder. Nevertheless, Det. Squyers could not have reasonably known that she would respond by urging her son to reconsider his invocation of his right to remain silent. Ms. Barrington very well could have supported her son's initial assertion and told him to remain silent.
The evidence does not support the conclusion that Barrington, having invoked his Miranda rights and allowed to have a conversation with his mother, even after learning of incriminating evidence and his mother's urging, and reminded that he did not need to talk to the police, would feel like he was being coerced by Det. Squyers to incriminate himself. Therefore, I find that the police did not re-engage Barrington in any type of interrogation through this telephone conversation. Instead, it was Barrington who re-engaged discussions regarding the investigation with the police.
3) Whether the accused knowingly and intelligently waived the previously invoked right to counsel
Barrington knowingly and intelligently waived his previously invoked right to counsel when he asked to talk to Det. Squyres following the telephone conversation with his mother. This is reflected in the fact that although a juvenile at the time, Barrington appeared relatively calm throughout the telephone conversation and had earlier intelligently asserted his right to remain silent initially when questioned by Det. Cogswell. The subsequent waiver was done in the mother's "presence" after she was called for a second time, and he seemed to understand the consequences of waiving his Fifth Amendment rights. Furthermore, the waiver was voluntary because the police did not put any psychological pressure on Barrington, and instead, it was the mother who urged her son to talk to the police.
To establish that the suspect knowingly and intelligently waived the previously invoked rights:
the court must determine whether the statement is the product of an essentially free and unconstrained choice by its maker, or . . . whether the maker's will has been overborne and his capacity for self-determination critically impaired. In determining whether the waiver was knowing and intelligent, the court must examine the totality of the
circumstances. Where a juvenile is involved, this includes evaluation of the juvenile's age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.Potts v. Commonwealth, 35 Va. App. 485,495 (2001) (citations omitted) (quotations omitted) (emphasis added). When a juvenile decides to waive his or her fundamental rights it is desirable, but not necessary, that he or she has a parent present to find such waiver valid. Grogg v. Commonwealth, 6 Va. App. 598, 613, (1988). Even when the suspect is only 17 years old and a high school dropout, the confession will still be "knowingly, intelligently, and voluntarily made" if the suspect appears to be intelligent, calm, articulate, and responsive. Potts, 35 Va. App. at 496.
Furthermore, "the totality of the circumstances also includes moral and psychological pressures to confess emanating from official sources." Morris v. Commonwealth, 17 Va. App. 575, 579, (1994) (citing Kauffmann v. Commonwealth, 8 Va. App. 400, 406, (1989)). Hence, to exclude confessions they must be made under inducement held out by persons in authority. Smith v. Commonwealth, 51 Va. 734, 739 (1853). Persons in authority is generally considered to be those engaged in the "apprehension, prosecution or examination" of the suspect, i.e., law enforcement. Shifflet v. Commonwealth, 55 Va. 652, 660 (1858).
Barrington knowingly and intelligently waived his previously invoked right to counsel when he asked to talk to Det. Squyres after the telephone conversation with his mother ended. Despite the fact that he was 17 and this was his first time being questioned by the police, Barrington appeared relatively calm throughout the entire phone conversation. Furthermore, when the phone conversation was over and he asked to speak to Det. Squyres, Det. Squyers made sure that he understood the consequences of such request by getting his mother back on the phone before Barrington made any further statement pertaining to the investigation. Also Det. Squyers advised Barrington of his Miranda rights and asked him to explain the meaning of such rights before he made any further statements. All this weighs heavily towards a finding that the waiver was knowingly and intelligently made.
The totality of the circumstances does not show that Barrington was subjected to psychological pressure to confess from official sources. Surprisingly, it was his mother who urged him to speak to the police. Barrington's mother was not engaged in his apprehension or examination, and therefore would not be considered an official source. Hence, when the mother reminded her son that "this [was] gonna be over [his] head for the rest of [his] life," told him several times that he "need[ed] to tell the truth," and asked him, "you gonna talk to an attorney, or are you gonna tell them the truth?" she was doing so in her capacity as his mother and such statements should not be considered psychological pressure for the purpose of determining the voluntariness of his waiver. Hence the waiver was not only knowingly and intelligently made, but voluntarily as well.
In conclusion, Barrington unequivocally invoked his right to remain silent initially when questioned by Det. Cogswell. This action by Barrington reflected an intelligent understanding of the Miranda warnings, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. The telephone conversation facilitated by Det. Sqyuers was not the functional equivalent of an interrogation and therefore did not constitute the re-initiation of further discussions pertaining to the investigation. The fact that Barrington's mother urged him to "talk to the police" and elicited potentially incriminating statements from her son could not be anticipated. Especially given Det. Squyers repeated reminders that Barrington had asserted his right to remain silent. Once the telephone conversation with his mother ended, Barrington asked to talk to the police. He then knowingly, voluntarily and intelligently waived the previously invoked right to counsel. Consequently, the motion to suppress will be denied. An order reflecting the same will be entered forthwith.
Sincerely,
/s/
Junius P. Fulton, III
Judge