COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0282-96-3 JUDGE LARRY G. ELDER JULY 15, 1996 DAVID WAYNE HALL
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY George E. Honts, III, Judge
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellant.
Ross S. Haine, Assistant Public Defender, for appellee.
The Commonwealth appeals the trial court's decision granting
David Wayne Hall's (the defendant's) pretrial motion to suppress.
The Commonwealth contends that the trial court erred in finding
that the police obtained statements from the defendant in
violation of his Sixth Amendment right to counsel. Because the
trial court did not err, we affirm its decision.
The record reveals that after receiving an informant's tip
and finding stolen property in the defendant's residence, Officer
Gary B. Coleman of the Lexington Police Department arrested the
defendant on August 27, 1995, on a charge of receiving stolen
property. Two days later, an attorney from the Public Defender's
Office was appointed to represent the defendant, and the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. defendant was released from jail on bond.
After his release from jail, the defendant moved to his
girlfriend's apartment in nearby Buena Vista. On September 15,
1995, Lexington Police Officer Torben A. Pederson, Rockbridge
County Deputy Sheriff C. J. Blalock, and two Buena Vista police
officers executed a search warrant at the apartment. During the
search of the house, police found a number of items known to be
stolen. After Deputy Blalock advised the defendant of his Miranda
rights, the defendant claimed that he received the items from
third parties and that he would assist the police in locating
those parties. Officer Pederson and Deputy Blalock did not have
actual knowledge on September 15, 1995 that counsel had been
appointed for the defendant on the receiving stolen property
charge. After further questioning at the sheriff's office, the
defendant gave an inculpatory statement.
On September 20, 1995, Officer Coleman and Deputy Blalock
encountered the defendant near his residence. Deputy Blalock
advised the defendant of his Miranda rights, and Officer Coleman asked the defendant "directly, if he was represented by an
attorney." The defendant stated that he did not have an attorney
but was thinking of hiring one. Neither Officer Coleman nor
Deputy Blalock attempted to determine if the defendant was in
fact represented by an attorney. The defendant accompanied the
officers in a police vehicle and indicated various locations in
-2- Lexington and Rockbridge County where he committed burglary and
larceny. The police then arrested the defendant for the numerous
burglaries and larcenies committed around Lexington.
After the defendant filed a motion to suppress his
inculpatory statements, the trial court found that the police
violated the defendant's Sixth Amendment rights. The
Commonwealth appeals the trial court's ruling.
In reviewing a ruling on a suppression motion, we consider
the evidence in the light most favorable to the prevailing party
below, in this case the defendant, and we will disturb the trial
court's decision only if it was plainly wrong. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). To
prevail on appeal, the Commonwealth carries the burden to show
that the granting of the defendant's motion constituted
reversible error. Motley v. Commonwealth, 17 Va. App. 439,
440-41, 437 S.E.2d 232, 233 (1993).
First, "[t]he invocation of the sixth amendment right to
counsel is charge specific and does not bar police initiated
interrogations with respect to charges unrelated to those for
which counsel has been employed." Jackson v. Commonwealth, 14
Va. App. 414, 416, 417 S.E.2d 5, 7 (1992)(citing McNeil v.
Wisconsin, 501 U.S. 171 (1991)); Maine v. Moulton, 474 U.S. 159
(1985). However, police initiated interrogations are barred with
respect to crimes that are so "inextricably intertwined" as to
foreclose isolating the right to counsel on one charge to other
-3- related charges. See United States v. Kidd, 12 F.3d 30, 33 (4th
Cir. 1993)(stating that in order to fall within the related
offense exception, "the offense being investigated must derive
from the same factual predicate as the charged offense"), cert.
denied, __ U.S. __, 114 S. Ct. 1629 (1994); United States v.
Hines, 963 F.2d 255, 257 (9th Cir. 1992)(discussing the
application of the "inextricably intertwined" charges exception).
In this case, we hold that the trial court did not err in
ruling that the two sets of charges were inextricably
intertwined. The evidence supports the conclusion that all of
the charges arose from an "on-going criminal enterprise"
involving burglary, larceny, and the disposition of property
stolen in those cases. The trial court cited five factors which
were critical to finding the inter-relationship between the two
sets of charges: 1. Officer Coleman knew from an informant before his first contact with the defendant that the defendant was selling numerous VCR's and other electronic equipment and that such items had been taken from private homes in Lexington.
2. The time lapse among these events was less than one month.
3. All the property involved in each charge was movable personal property and all of it came from private homes in the Rockbridge- Lexington area.
4. The defendant's explanation in each case was that he had acquired the property in question from a third party. The numerous "leads" he offered all resulted in nothing being development [sic] against the third
-4- party named or described.
5. Not only was all of the property part of an on-going criminal enterprise, all the police investigations and actions focused on that particular criminal enterprise, and, significantly, officers from Lexington and Rockbridge County worked together in the investigations.
We cannot say that the trial court erred in making these
findings.
Even if the officers reasonably believed that the offenses
were unrelated when they interrogated the defendant on September
16 and 20, 1995, this does not mean that the defendant's rights
were not violated. When adversarial proceedings were initiated
against the defendant for receiving stolen property and counsel
was appointed to represent him, his Sixth Amendment right to
counsel attached and precluded further police questioning about
any of the related offenses. See Tipton v. Commonwealth, 18 Va.
App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 0282-96-3 JUDGE LARRY G. ELDER JULY 15, 1996 DAVID WAYNE HALL
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY George E. Honts, III, Judge
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellant.
Ross S. Haine, Assistant Public Defender, for appellee.
The Commonwealth appeals the trial court's decision granting
David Wayne Hall's (the defendant's) pretrial motion to suppress.
The Commonwealth contends that the trial court erred in finding
that the police obtained statements from the defendant in
violation of his Sixth Amendment right to counsel. Because the
trial court did not err, we affirm its decision.
The record reveals that after receiving an informant's tip
and finding stolen property in the defendant's residence, Officer
Gary B. Coleman of the Lexington Police Department arrested the
defendant on August 27, 1995, on a charge of receiving stolen
property. Two days later, an attorney from the Public Defender's
Office was appointed to represent the defendant, and the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. defendant was released from jail on bond.
After his release from jail, the defendant moved to his
girlfriend's apartment in nearby Buena Vista. On September 15,
1995, Lexington Police Officer Torben A. Pederson, Rockbridge
County Deputy Sheriff C. J. Blalock, and two Buena Vista police
officers executed a search warrant at the apartment. During the
search of the house, police found a number of items known to be
stolen. After Deputy Blalock advised the defendant of his Miranda
rights, the defendant claimed that he received the items from
third parties and that he would assist the police in locating
those parties. Officer Pederson and Deputy Blalock did not have
actual knowledge on September 15, 1995 that counsel had been
appointed for the defendant on the receiving stolen property
charge. After further questioning at the sheriff's office, the
defendant gave an inculpatory statement.
On September 20, 1995, Officer Coleman and Deputy Blalock
encountered the defendant near his residence. Deputy Blalock
advised the defendant of his Miranda rights, and Officer Coleman asked the defendant "directly, if he was represented by an
attorney." The defendant stated that he did not have an attorney
but was thinking of hiring one. Neither Officer Coleman nor
Deputy Blalock attempted to determine if the defendant was in
fact represented by an attorney. The defendant accompanied the
officers in a police vehicle and indicated various locations in
-2- Lexington and Rockbridge County where he committed burglary and
larceny. The police then arrested the defendant for the numerous
burglaries and larcenies committed around Lexington.
After the defendant filed a motion to suppress his
inculpatory statements, the trial court found that the police
violated the defendant's Sixth Amendment rights. The
Commonwealth appeals the trial court's ruling.
In reviewing a ruling on a suppression motion, we consider
the evidence in the light most favorable to the prevailing party
below, in this case the defendant, and we will disturb the trial
court's decision only if it was plainly wrong. Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). To
prevail on appeal, the Commonwealth carries the burden to show
that the granting of the defendant's motion constituted
reversible error. Motley v. Commonwealth, 17 Va. App. 439,
440-41, 437 S.E.2d 232, 233 (1993).
First, "[t]he invocation of the sixth amendment right to
counsel is charge specific and does not bar police initiated
interrogations with respect to charges unrelated to those for
which counsel has been employed." Jackson v. Commonwealth, 14
Va. App. 414, 416, 417 S.E.2d 5, 7 (1992)(citing McNeil v.
Wisconsin, 501 U.S. 171 (1991)); Maine v. Moulton, 474 U.S. 159
(1985). However, police initiated interrogations are barred with
respect to crimes that are so "inextricably intertwined" as to
foreclose isolating the right to counsel on one charge to other
-3- related charges. See United States v. Kidd, 12 F.3d 30, 33 (4th
Cir. 1993)(stating that in order to fall within the related
offense exception, "the offense being investigated must derive
from the same factual predicate as the charged offense"), cert.
denied, __ U.S. __, 114 S. Ct. 1629 (1994); United States v.
Hines, 963 F.2d 255, 257 (9th Cir. 1992)(discussing the
application of the "inextricably intertwined" charges exception).
In this case, we hold that the trial court did not err in
ruling that the two sets of charges were inextricably
intertwined. The evidence supports the conclusion that all of
the charges arose from an "on-going criminal enterprise"
involving burglary, larceny, and the disposition of property
stolen in those cases. The trial court cited five factors which
were critical to finding the inter-relationship between the two
sets of charges: 1. Officer Coleman knew from an informant before his first contact with the defendant that the defendant was selling numerous VCR's and other electronic equipment and that such items had been taken from private homes in Lexington.
2. The time lapse among these events was less than one month.
3. All the property involved in each charge was movable personal property and all of it came from private homes in the Rockbridge- Lexington area.
4. The defendant's explanation in each case was that he had acquired the property in question from a third party. The numerous "leads" he offered all resulted in nothing being development [sic] against the third
-4- party named or described.
5. Not only was all of the property part of an on-going criminal enterprise, all the police investigations and actions focused on that particular criminal enterprise, and, significantly, officers from Lexington and Rockbridge County worked together in the investigations.
We cannot say that the trial court erred in making these
findings.
Even if the officers reasonably believed that the offenses
were unrelated when they interrogated the defendant on September
16 and 20, 1995, this does not mean that the defendant's rights
were not violated. When adversarial proceedings were initiated
against the defendant for receiving stolen property and counsel
was appointed to represent him, his Sixth Amendment right to
counsel attached and precluded further police questioning about
any of the related offenses. See Tipton v. Commonwealth, 18 Va.
App. 832, 835, 447 S.E.2d 539, 541 (1994).
Second, it matters not that the officers lacked actual knowledge that the defendant was represented by an attorney or
that the officers did not purposely deny the defendant his Sixth
Amendment right to counsel. Arizona v. Roberson, 486 U.S. 675,
687 (1981)("we attach no significance to the fact that the
officer who conducted the second interrogation did not know that
the respondent had made a request for counsel"). "[S]ixth
amendment principles require that we impute the [Commonwealth's]
knowledge from one state actor to another." Michigan v. Jackson,
-5- 475 U.S. 625, 634 (1966). Once the defendant requested and was
appointed an attorney by the trial court, all state actors were
deemed to possess knowledge of this fact. See Roberson, 486 U.S.
at 687-88 (stating that police departments must establish
procedures enabling officers without actual knowledge to
determine if an accused has requested counsel). It is of little
import that the defendant told the officers on September 20,
1995, that he did not have an attorney. The defendant
misapprehended his Sixth Amendment rights and testified that he
assumed that the question related only to the forthcoming
burglary and larceny charges. See Jackson, 475 U.S. at 636
(holding that once Sixth Amendment rights attach, and the accused
properly invokes these rights by retaining or requesting counsel,
subsequent waivers are deemed ineffective).
Based on the foregoing, we affirm the trial court's
decision.
Affirmed.
-6- Baker, J., concurring.
Because the trial court found as a fact that the stolen
items discovered in defendant's possession on August 27, 1995
were items stolen in the burglaries, I would simply hold that the
evidence is sufficient to support the trial court's decision.
-7-