Opinion
Record No. 1988-09-2.
August 10, 2010.
Appealed from the Circuit Court of The City of Richmond Bradley B. Cavedo, Judge.
Catherine M. French, Supervising Assistant Public Defender, for appellant.
Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Petty, Alston and Senior Judge Willis.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On appeal from his convictions for robbery and conspiracy to commit robbery, Jerrod Tyree Quarles contends the trial court erred in denying his motion to suppress his statements to the police. He argues that after he invoked his right to counsel pursuant toMiranda v. Arizona, 384 U.S. 436 (1966), Detective Alston impermissibly reinitiated communication with him. He further argues that his subsequent waiver of his Fifth Amendment rights and his agreement to talk to the officers was not knowing and voluntary. We affirm the judgment of the trial court.
Quarles and an eleven-year-old boy (co-defendant) were arrested for robbery and conspiracy to commit robbery and were transported to the police station. For about forty-five minutes, Alston spoke with the co-defendant, who gave a full confession, implicating Quarles in the crimes. While Alston was with the co-defendant, Officer Papeo stayed with Quarles in the main detectives' office. Papeo properly informed Quarles of his Miranda rights. Quarles signed a waiver of rights form, but stated that he wanted to speak to an attorney. Papeo did not question him.
When Alston finished speaking with the co-defendant, he returned to the detectives' office where Papeo was waiting with Quarles. Papeo gave Alston the signed waiver form and told him that Quarles had invoked his right to an attorney. Alston responded, "That's fine if he doesn't want to talk to me. I wasn't the one who robbed the white lady and hit her in the head with a brick. It that's the story you want to tell the judge, that's fine." Alston testified at the suppression hearing that while these comments were addressed to Papeo, Quarles was present and could hear them. Alston further testified that at the time he made those comments, the co-defendant's confession had described Quarles' participation in the robbery and "the case was made."
Alston testified that after his foregoing comments to Papeo, Quarles stated, "Hold on, I want to talk to you." Alston testified that he responded, "No, that's fine, you don't have to talk to me, I'm good." He testified that Quarles again said he wanted to talk. He testified that he told Quarles that he would need to sign another waiver of rights form and would need to write on the form that he wanted to talk. Quarles again signed the waiver form, writing on the back that he had asked for an attorney, but had changed his mind and wanted to speak to Alston. Alston again informed Quarles of hisMiranda rights. Quarles then made the subject incriminating statements.
In denying Quarles' motion to suppress the incriminating statements, the trial court found that Alston's comments were in response to Papeo's statement that Quarles had invoked his right to an attorney. The trial court further held that even if Alston's comments were addressed to Quarles, they were not the functional equivalent of interrogation, but the opposite, because Alston had reaffirmed to Quarles that he did not need to talk.
"In reviewing a trial court's denial of a motion to suppress, 'the burden is upon [the defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." To guard against potential compulsion, the United States Supreme Court announced a number of rights to protect the Fifth Amendment privilege of self-incrimination, including the right to have an attorney present during custodial interrogation.Miranda, 384 U.S. at 469-73.
[T]he term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . 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 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, 301-02 (1980) (footnotes omitted).
In Innis, two officers were transporting Innis, a murder suspect, to the police station. Innis had invoked his Fifth Amendment right to an attorney. During a conversation between the officers while en route to the station, one officer expressed concern about the location of a missing firearm used in the crime because the crime had occurred near a school for handicapped children. He said, "God forbid one of them might find the weapon with shells and they might hurt themselves." Innis interrupted and offered to show the officers the location of the firearm.Id. at 294-95. Ruling that Innis was not interrogated, the Supreme Court held that the conversation between the officers included no express questioning of Innis, but "[r]ather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited." Id. at 302.
Quarles argues that Alston's comments were the functional equivalent of interrogation, rendering his subsequent confession involuntary and inadmissible. The record does not support this assertion. Nothing Alston said to Papeo was addressed to Quarles. His comments reflected no expectation or hope of response by Quarles. His comments were not reasonably likely to elicit a reply from Quarles. He felt no need to interrogate Quarles because "the case was made." As in Innis, the conversation between Alston and Papeo was nothing more than a few offhand remarks between the two officers to which no response from Quarles was invited.See also Gates v. Commonwealth, 30 Va. App. 352, 356, 516 S.E.2d 731, 733 (1999).
Alston confirmed his respect for Quarles' assertion of his wish for an attorney by advising him again of his Miranda rights and by requiring that he again sign the waiver form, noting his change of mind and wish to talk without the presence of an attorney, before accepting a statement from him.
Under these circumstances, the trial court did not err in holding that Alston's comments were not the functional equivalent of interrogation, that Quarles reinitiated communication by asserting his wish to talk, that Quarles' Fifth Amendment rights were not violated, and that his confession was voluntary and admissible. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
I respectfully dissent from the majority's finding that the trial court did not err in denying appellant's motion to suppress his incriminating statements.
Under Miranda v. Arizona, 384 U.S. 436, 473-74 (1966), "[i]f [the accused] states that he wants an attorney, the interrogation must cease until an attorney is present." Furthermore, "an 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 v. Arizona, 451 U.S. 477, 484-85 (1981). In Ferguson v. Commonwealth, 52 Va. App. 324, 663 S.E.2d 505 (2008) ( en banc),aff'd, 278 Va. 118, 677 S.E.2d 45 (2009), this Court provided a three-part analysis to determine the admissibility of a statement under Edwards:
First, the trial court must determine whether the accused "unequivocally" invoked his or her right to counsel. Second, the trial court must determine whether the accused, rather than the authorities, initiated further discussions or meetings with the police. Third, if the accused did initiate further discussions or conversations with police, the trial court must then ascertain whether the accused knowingly and intelligently waived the previously invoked right to counsel.
52 Va. App. at 335-36, 663 S.E.2d at 510 (citing Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998)).
This prophylactic rule reflects "the underlying concern ofMiranda, Edwards, and their progeny[:] the coercive atmosphere of custodial interrogation and the state of mind of the suspect." Commonwealth v. Gregory, 263 Va. 134, 147, 557 S.E.2d 715, 722 (2002). The Miranda protections
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.
Id. (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). With all due respect to the learned majority, its holding fails to give appropriate deference to our case law's recognition of the coercive nature of custodial interrogations and the duty of law enforcement officers to scrupulously honor suspects' requests for counsel. In this case, it is undisputed that appellant unequivocally invoked his right to counsel. In my view, the evidence does not support the majority's analysis that appellant's request for counsel was scrupulously honored.
More precisely stated, the Supreme Court held inMiranda that procedural safeguards must be employed to ensure the right of silence "will be scrupulously honored." 384 U.S. at 478-79. To date, our courts have not explicitly stated that the right to counsel also must be "scrupulous honored"; however, in my opinion, when a suspect's right to counsel is given anything less than total deference, "the privilege of self-incrimination is jeopardized," see id. at 478. Accordingly, it is appropriate to give, at a minimum, the right to counsel the same constitutional reverence given to the right of silence.
Thus, Detective Alston's statement to Officer Papeo, which was made in appellant's presence, constituted a reinitiation of communication and an accusation that any reasonable person should have known was "reasonably likely to elicit an incriminating response from the suspect," and thus constituted the functional equivalent of an interrogation. Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
Shortly after Officer Papeo told Detective Alston that appellant had invoked his right to counsel, the detective confronted appellant with the evidence against him. He stated, "That's fine if he doesn't want to talk to me. I wasn't the one who robbed the white lady and hit her in the head with a brick. If that's the story you want to tell the judge, that's fine." During cross-examination at the motion to suppress hearing, Detective Alston admitted that because appellant was in the room, the statement was directed at appellant, as well as Officer Papeo.
Immediately after Detective Alston directly invited appellant to reconsider his decision to exercise his constitutional right, appellant told the officers that he wished to talk to them and that he waived his right to counsel.
To determine whether Detective Alston's statement was an unconstitutional interrogation, we must determine "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). Because this is a question of law, we review it de novo.See id. at 193-94, 503 S.E.2d at 236 (holding that whether the appellant was subjected to a custodial interrogation is reviewed de novo (citations omitted)). "'If a [suspect's] statement is not foreseeable, then it is volunteered.'"Gates v. Commonwealth, 30 Va. App. 352, 356, 516 S.E.2d 731, 733 (1999) (quotingBlain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988)). By saying, "I wasn't the person that robbed a white lady and hit her in the head with a brick," Alston told appellant the evidence against him, using the specific terminology provided by appellant's co-defendant. The detective identified the victim in the case as the "white lady," after hearing co-defendant confess that appellant and co-defendant's plan was to "rob a white lady or white people in the VCU area." The second half of Detective Alston's statement, "If that's the story you want to tell the judge, that's fine," (emphasis added), was clearly addressed to appellant, and explicitly challenged his ability to exculpate himself. These statements do not fall into the category of appropriate statements made "normally attendant to arrest and custody." Innis, 446 U.S. at 301. Objectively, Detective Alston's statements amount to a warning that the police had co-defendant's confession, and unless appellant made a statement, the judge would look unfavorably upon appellant, based on co-defendant's confession. Detective Alston should have known that this criticism of appellant's defense would elicit a response.
The majority relies on Innis, 446 U.S. 291, to support its conclusion that "the conversation between Alston and Papeo was nothing more than a few offhand remarks between the two officers to which no response from Quarles was invited." In Innis, during a conversation between the police officers, one officer expressed concern about the location of a missing firearm used in the crime because the crime had occurred near a school for handicapped children. Id. at 294-95. The Supreme Court held that the conversation between the officers did not constitute express questioning because "no response from the respondent was invited."Id. at 302. Unlike the statement in Innis, Detective Alston's comments invited a response from appellant. Detective Alston said, "If that's the story you want to tell the judge, that's fine." The majority determines that this statement did not invite a response from appellant because it was ostensibly directed to Officer Papeo. The evidence does not support this determination because the detective's choice of the pronoun "you" indicates that he was speaking to appellant. If Detective Alston directed his comments solely to Officer Papeo, he would have chosen the pronoun "he," rather than "you." Additionally, during the motion to suppress, Detective Alston admitted that he directed his statements, at least in part, to appellant. Therefore, unlike the police officer's comments in Innis, the comments made by Detective Alston in this case clearly invited a response from appellant.
Based on the foregoing, I would find appellant's subsequent waiver of his Miranda rights invalid. Because appellant did not reinitiate communication with Detective Alston, his subsequent waiver of his right to counsel did not make his incriminating statements admissible.
Once an accused asserts his or her right to counsel, subsequent waiver of that right is not sufficient to make admissible any incriminating statements thereafter obtained, even if investigators have re-Mirandized the accused, unless the statements are initiated by the defendant and shown to be based on a knowing, intelligent, and voluntary waiver.
Giles, 28 Va. App. at 531, 507 S.E.2d at 105. Since Detective Alston reinitiated communication with appellant after appellant unequivocally requested the assistance of counsel, appellant's subsequent waiver of his Miranda rights was not voluntary. Thus, his subsequent incriminating statements were inadmissible. Therefore, I would find the trial court erred in denying appellant's motion to suppress his incriminating statements.
There is no doubt that reasonable minds on a higher court could at some point question the continued viability ofMiranda and its progeny. The facts and circumstances that dictate what is or is not a constitutional violation have over time become a more elusive target to identify. However, until controlling authority dictates a different result, it is my view that we are duty-bound to uphold the constitutional prerogatives criminal defendants still enjoy under Miranda,Edwards, Roberson, Gregory, and Giles.
For the foregoing reasons, I respectfully dissent from the majority's opinion in this case.