Opinion
CRIMINAL CASE NO. 23159
06-19-2012
COMMONWEALTH OF VIRGINIA v. LEO RICHARD DUROCHER
MEMORANDUM OPINION AND ORDER
Leo Richard Durocher is charged in a multiple count indictment with murder, robbery, burglary, use of a firearm in the commission of a felony, and the possession of a firearm by a convicted felon. He has filed with the Court, inter alia, a motion to suppress a statement made by him to officers of the Loudoun County Sheriff's Office on May 5, 2011 in Cumberland, Maryland. At the time the statement was made, Mr. Durocher was in the custody of Maryland authorities on a Virginia warrant, awaiting extradition.
Investigators Russ and Craig advised Mr. Durocher of his Miranda rights prior to speaking with him in an interview room at the office of the Cumberland Investigative Task Force. Miranda v. Arizona, 384 U.S. 436 (1966). Without making any statements, Mr. Durocher unequivocally asserted his right to have counsel present during any questioning by the investigators. Counsel was not provided for him at that time. However, the investigators remained in the room with Mr. Durocher after the assertion by Mr. Durocher of his right to counsel in order that they might play a recording of excerpts of a taped statement by a co-defendant implicated in the offenses with which he had been charged.
In playing the tape, it was the expressed intent of the officers to lay a foundation for a further interview to be conducted at least fourteen days later that would be initiated by them. Fourteen days was selected based upon the officers' understanding of their ability to reinitiate communicative contact concerning the offense with Mr. Durocher without violating the prophylactic rule enunciated in Edwards v. Arizona, 451 U.S. 477 (1981). See Maryland v. Shatzer, 130 S. Ct. 1213 (2010). In Edwards, the Supreme Court of the United States made it clear that:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused, . . . 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.Edwards, 451 U.S. at 484-85. In Maryland v. Shatzer, the Supreme Court recognized time limits for the rule in Edwards, and that the coercive effects of a custodial interrogation may dissipate over time with the reintegration of a person into familiar surroundings. Shatzer, 130 S. Ct. at 1223. That period was set at fourteen days. Id.
While it may have been the desire of the officers to merely leave the interview room with the hope that playing an eight minute tape containing highly incriminating statements affecting Mr. Durocher would facilitate an additional discussion after fourteen days had passed, it is not the subjective intent of the officers that guides the outcome of this motion.
The Supreme Court of Virginia has recently revisited the issue of when, after a person has asserted their right to counsel, statements made by the person are held to be a product of a police initiated custodial interrogation or its functional equivalent. Commonwealth v. Quarles, 283 Va. 214 (2012). In Quarles, the defendant asserted his right to talk to an attorney. Overhearing a conversation between two officers concerning the offense and of the merits of the case against him, the defendant initiated a conversation leading to a confession. Id. at 218. The Court noted that, as defined by the Supreme Court of the United States, an "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." Id. at 221. (quoting Rhode Island v. Innis, 446 U.S. 291, 302 (1980)). In Quarles, the Court, after examining the content and context of the conversation between the officers, could not find that the detective should have known that the defendant was likely to respond. Id. at 224.
In the instant case, it is uncontroverted that Mr. Durocher asserted his right to counsel after being warned of his Miranda rights. He was not furnished counsel. The officers remained in the interview room while the tape was played positioned on each side of Mr. Durocher. Rather than a brief declaratory statement, the tape furnished was eight minutes long and contained highly incriminating statements clipped together from interviews with his accomplice in a homicide. While the officers cautioned him to say nothing during the playing of the tape, the officers should have known that it was reasonably likely that Mr. Durocher would offer comment on its playing. Indeed, the facts are strikingly similar to the playing of a tape in Edwards that was found to be the lynchpin of a custodial interrogation in that case.
Accordingly, the Court will grant the motion to suppress the statement made by the Mr. Durocher that "Oh, he is going to put this all on me" made during the playing of the tape.
This case will be continued.
Entered this 19th day of June, 2012
/s/_________
THOMAS D. HORNE, JUDGE