COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank Argued at Richmond, Virginia
JASON WAYNE GREGORY MEMORANDUM OPINION * BY v. Record No. 1671-99-2 JUDGE ROBERT P. FRANK MARCH 13, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Jason Wayne Gregory appeals his convictions, after bench
trials, for capital murder, robbery, two counts of use of a
firearm, burglary, grand larceny, and vandalism. On appeal, he
contends the trial court erred in: 1) denying his motion to
dismiss the burglary, grand larceny, and vandalism charges because
of a speedy trial violation pursuant to Code § 19.2-243, 2)
finding he was not in custody for the purposes of Miranda when he
was interviewed by police on January 4, 1998, 3) finding he did
not invoke his right to counsel during the January 4, 1998
interview, 4) denying his motion to suppress his statement and all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. evidence derived from interviews on January 4, 1998 and January
16, 1998, 5) finding he made a knowing, intelligent, voluntary
waiver of his Miranda rights prior to the January 16, 1998
interview, 6) denying his motion for a mistrial based on the
Commonwealth's failure to comply with Rule 3A:11, and 7) denying
his motion to strike the admission of his statements as a sanction
for the Commonwealth's failure to comply with Rule 3A:11.
I. BACKGROUND
On December 31, 1997, a Chesterfield County police officer
found James Michael Lambrecht (victim) lying dead in a parked
vehicle. An autopsy revealed the victim died as a result of two
gunshot wounds to the right side of his head. The victim's wife
testified the victim sold marijuana, usually to his friends. When
the police began their investigation into the victim's death, she
provided them with the victim's address book, which contained the
names of people with whom the victim made drug transactions. One
of the names listed in the address book was "Jason," and the
police determined from the victim's family that "Jason" was
appellant.
Detective Elizabeth Baker visited appellant's home and left a
message for him to contact her. On January 4, 1998, appellant
contacted Detective Baker, who, along with Detective Steve Smith,
traveled to appellant's residence. Appellant agreed to accompany
the detectives back to the police station for an interview. At
this time, appellant was not placed under arrest, was not
- 2 - handcuffed, and rode in the front passenger seat of the
detectives' vehicle. Appellant was not advised of his Miranda
rights prior to the interview. During the interview, appellant
stated he had been with Jeff Able on the evening of December 30,
1997. At one point during the interview, appellant mentioned an
attorney. He testified he said, "'I think I need an attorney,'"
or "'I think I need a lawyer,' or something like that." Detective
Smith responded, "Have you done something wrong that you need an
attorney?" Detective Smith testified appellant's mention of a
lawyer was phrased as a question such as, "Is it time for a
lawyer," or "Think it's time for an attorney?" Detective Smith
further testified he did not stop the interview because he
considered appellant's words to be a question and not a request
for an attorney. Appellant admitted he interpreted Detective
Smith's response to mean that he did not need an attorney if he
had done nothing wrong and admitted he did not mention an attorney
at any other time during the interview. Appellant was not placed
under arrest for the homicide of the victim at the conclusion of
the interview. However, appellant was informed during the
interview that there was an outstanding capias for his arrest,
which was unrelated to the murder investigation. After the
interview, an officer took appellant to the magistrate's office
where he was served with the capias. Appellant was released on
bond.
- 3 - On January 9, 1998, Detective Baker interviewed Jeff Able,
whose name also appeared in the victim's address book. Able told
Detective Baker he had been at appellant's house the night of
December 30, 1997. Able said appellant was drinking, firing his
gun, and repeatedly asking Able if he wanted to kill someone that
night. As a result of Able's statement, Detective Smith went to
appellant's residence to conduct a search of the backyard. The
police recovered three casings and two bullets in the yard. The
search was conducted with the consent of Marvin Downs, another man
who lived in the house.
On January 15, 1998, the Redeemer Lutheran Church on
Redbridge Road in Chesterfield County was burglarized and $60,000
worth of church property was stolen or vandalized. During the
investigation of this incident, an employee of a convenience store
located near the church told the police that a man tried to buy
batteries for a radio that matched the description of a radio
stolen from the church. The police viewed the store's security
camera videotape and identified the man with the radio as
On January 16, 1998, Able came to Detective Baker's office
and told her he had been with appellant the day before and
appellant indicated he had broken into the church. He further
said appellant told him appellant had shot the victim and
appellant's friend, Michael Sammons, had "finished off" the
victim. The police arrested Sammons, and Sammons implicated
- 4 - himself and appellant in the murder. Sammons also told the police
where to find appellant. Police located appellant and took him
into custody. At police headquarters, appellant was advised of
his Miranda rights and did not request an attorney. Appellant
admitted to the homicide of the victim during the videotaped
interview.
During a hearing on October 19, 1998, appellant appeared with
Mr. Tondrowski, co-counsel on the murder charge. Appellant's
other attorney, Mr. Morgan, who was the lead attorney in the
murder case and his only counsel on the charges resulting from the
church burglary, was not present. The Commonwealth moved to
continue the trial of the burglary-related charges until February
5, 1999. The following exchange occurred between the trial court
and Mr. Tondrowski:
MR. TONDROWSKI: Judge, the only problem I have with that is that I have not discussed this issue with Mr. Morgan, and Mr. Morgan represents him on the B&E's, and I do not. That's the problem I have with it.
THE COURT: All right. Well, we're going to set it for February the 5th. That is the burglary case.
The Commonwealth then moved to set the murder case during the
period February 15 through February 22. The trial court asked Mr.
Tondrowski if he had the opportunity to consult with appellant
regarding the waiver of speedy trial. Mr. Tondrowski consulted
with appellant and then indicated appellant was prepared to go
forward with the waiver. The trial court then queried appellant
- 5 - regarding his waiver of speedy trial, and appellant stated he
would waive his right to a speedy trial. The trial court set the
murder trial for February 22, 1999.
On February 4, 1999, appellant filed a motion to dismiss the
charges related to the church burglary because his right to a
speedy trial had been violated. The trial court denied the
motion. Appellant was subsequently tried and convicted of the
charges related to the church burglary.
During the murder trial, the Commonwealth played an edited
version of the videotaped statement appellant made on January 16,
1998. A copy of the videotape had been given to the defense
before trial, but the copy did not work properly. As the
videotape played, defense counsel realized he had not seen the
portion of the tape being shown. The defense argued appellant had
been prejudiced in preparing his defense because the defense had
not viewed appellant's entire statement and moved for a mistrial.
The trial court denied the motion for a mistrial, struck the
portion of the tape the defense had not seen, and made Tori
DeMaio, a witness who the defense argued may have been present at
the scene of the murder, available to testify. Appellant also
moved to strike the admission of the videotaped statement as a
sanction. The trial court denied the motion to strike, and
appellant was convicted of capital murder, robbery, and two counts
of use of a firearm.
- 6 - II.
Appellant argues the trial court erred in denying his motion
to dismiss his burglary, grand larceny, and vandalism charges
because the Commonwealth failed to try him within five months of
finding of probable cause in violation of Code § 19.2-243.
Code § 19.2-243 states, in part:
Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court; and if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced in the circuit court within nine months from the date such probable cause was found.
Code § 19.2-243(4), however, states the provisions of the section
do not apply if the failure to try the accused was caused:
By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance.
In Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704
(1998), we held:
- 7 - Under Code § 19.2-243, the Commonwealth must commence trial within five months, which "translates to 152 and a fraction days." Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). The five-month period begins to run on the day after the preliminary hearing at which probable cause is found. Randolph v. Commonwealth, 22 Va. App. 334, 335, 470 S.E.2d 132, 133 (1996). Any delays that are chargeable to the defendant are subtracted from the total number of days that elapse from the day after the finding of probable cause to the commencement of trial. If the time thus calculated exceeds 152 and a fraction days, the defendant "shall be forever discharged from prosecution for such offenses." Code § 19.2-243.
Id. at 152, 502 S.E.2d at 706.
"A defendant may agree to a general waiver of his or her
statutory speedy trial rights, in which instance the accused
foregoes his or her rights granted by Code § 19.2-243." Mitchell
v. Commonwealth, 30 Va. App. 520, 528, 518 S.E.2d 330, 334 (1999).
However, "a waiver of any constitutional right must be knowingly,
intelligently, and voluntarily made." Peterson v. Commonwealth, 5
Va. App. 389, 396, 363 S.E.2d 440, 444 (1987) (citing Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).
In this case, on June 8, 1998, the general district court
found probable cause to believe appellant committed the burglary,
grand larceny, and vandalism. Therefore, under Code § 19.2-243,
the Commonwealth had until November 7, 1998 to try appellant for
these charges. Appellant was not tried until February 5, 1999.
- 8 - At the October 19, 1998 hearing, the Commonwealth moved to
continue the trial of the charges related to the church burglary
until February 5, 1999. The attorney who represented appellant on
the burglary-related charges was not present at the hearing.
Co-counsel on the murder charge was present at the hearing and
told the trial court that appellant's counsel for the
burglary-related charges was not present. The trial court set the
trial for the burglary charge for February 5, 1999, without asking
appellant if he waived his right to a speedy trial. Then, the
trial court proceeded to address the trial for the murder charge.
With regard to the continuance of the murder trial, the court
queried appellant about his desire to waive his right to a speedy
trial and asked appellant if he had discussed the matter with his
attorney. Appellant indicated his desire to waive his right to a
speedy trial and agreed to set the murder trial for February 22,
1999. His attorney on the murder charge, who was present,
concurred.
The discussions of the continuance of the trial of the
burglary-related charges and the murder trial were two distinct
conversations. Appellant was not represented by counsel on the
burglary, grand larceny, and vandalism charges, and he was not
asked whether he wished to waive his right to a speedy trial on
those charges. The trial court set the trial for those charges
without querying appellant. Once the trial judge set the trial
for the burglary-related charges for February 5, 1999, the sole
- 9 - issue in the court's colloquy was the continuance of the murder
trial. We find appellant did not make a knowing, intelligent, and
voluntary waiver of his right to a speedy trial with respect to
the burglary, grand larceny, and vandalism charges, and,
therefore, appellant's right to a speedy trial pursuant to Code
§ 19.2-243 was violated.
III.
Appellant argues he was in custody during the January 4, 1998
interview and, because he was not advised of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), any statements and
evidence derived from the interview should have been suppressed.
The only evidence obtained during the interview that may have been
incriminating or may have led to incriminating information was
appellant's statement that he spent the evening of December 30,
1997 with Jeff Able.
Assuming, without deciding, appellant was in custody for the
purposes of Miranda, we hold the police would have inevitably
discovered Jeffrey Able's name.
In Nix v. Williams, 467 U.S. 431, 447, 104 S. Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court of the United States held that "if the government can prove that the evidence [obtained by illegal means] would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury."
- 10 - Timbers v. Commonwealth, 28 Va. App. 187, 199, 503 S.E.2d 233, 239
(1998).
[T]he inevitable discovery exception requires that the prosecution show: "(1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct, and (3) that the police also prior to the misconduct were actively pursuing the alternative line of investigation."
Id. (quoting Walls v. Commonwealth, 2 Va. App. 639, 656, 347
S.E.2d 175, 185 (1986) (citation omitted)).
Federal courts have applied the inevitable discovery doctrine
in cases where the evidence was obtained as a result of a Miranda
violation. See Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th
Cir. 1994), cert. denied, 513 U.S. 1183 (1995); United States v.
Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir. 1987).
In this case, Detective Baker testified that the victim's
wife gave the police an address book in which the victim kept the
names of his contacts and a record of his transactions. Detective
Baker testified the police were doing interviews "with any and
everybody that knew [the victim]," and appellant's name in the
book led to their initial interview with him on January 4, 1998.
Able's name also was listed in the victim's book.
In this case, the police possessed the victim's book, which
included both appellant's name and Able's name. The police
testified they were interviewing everyone who knew the victim,
- 11 - including the people listed in the book. We hold, therefore, that
there was a reasonable probability the police would have
discovered Able's name exclusive of their interview with appellant
on January 4, 1998. The police possessed the book on January 4,
1998, when they conducted the interview with appellant. Both
Detectives Baker and Smith testified they were interviewing
everyone who knew the victim. Therefore, the police clearly
possessed the lead, the book, making the discovery inevitable and
were pursuing the alternative line of investigation, questioning
everyone who knew the victim, prior to the January 4, 1998
IV.
Appellant contends he invoked his right to counsel during the
January 4, 1998 interview, which prohibited the police from
initiating the second interview with him on January 16, 1998.
Assuming, without deciding, appellant invoked his right to
counsel on January 4, 1998, he did not provide the police with
inculpatory information subsequent to the invocation. After the
invocation, Detective Smith asked appellant if he had done
something wrong and appellant answered that he had not. The
detective then tried to establish a time-line of the evening the
victim was killed and asked appellant if he had ridden in the
victim's car that night. Appellant answered in the negative. The
detective asked appellant if he killed the victim and appellant
answered that he did not. The detective then questioned appellant
- 12 - about his willingness to take a polygraph test, the last time he
was in the victim's car, his stepfather's house, whether he knew
about the outstanding capias, if he knew why the victim was
killed, if he had ridden in the victim's Camaro, and whether he
owed the victim money. None of appellant's responses to the
questions were inculpatory. Then, the detective explained the
operation of a polygraph test and told appellant the test would be
inconclusive if he used alcohol or drugs. Appellant then asked
Detective Baker about the capias and whether he would have to go
to jail. She explained that he would go before the magistrate.
She also asked him if he avoided the police because of the capias
and he answered affirmatively. She asked appellant how the capias
had arisen. Appellant answered that he had driven on a suspended
license. She asked if he was DUI at the time he was driving on
the suspended license and whether he had an identification card.
His answers to those questions were not inculpatory. Appellant
then was asked if he wore glasses and when he last had a haircut.
His answers to those questions were not inculpatory. Then,
Detective Smith asked appellant if he could examine his
sweatshirt. Appellant gave the detective his shirt. Appellant
does not allege and the record does not indicate that anything
related to the sweatshirt provided the police with inculpatory
information. The detective then explained that everyone was a
potential suspect and the police were not focusing on appellant.
The detectives then asked appellant to show them his hands. They
- 13 - remarked about some cuts and scratches on his hands and arms. He
explained that some of the cuts were self-inflicted and that the
others were the result of playful wrestling. The answers to those
questions were not inculpatory. The detectives asked appellant
where he sat in the victim's car and he responded he sat in the
driver's seat. They asked him if he knew where the victim kept
his drugs and he responded he did not know. They asked him if he
went with the victim to make drug deals and he responded
negatively. The detectives asked appellant if he knew how many
clients the victim had. Appellant answered that he did not know.
None of these responses provided inculpatory information nor did
they lead to inculpatory information. Finally, the detectives
explained to appellant that he would go before the magistrate on
the capias and asked him to empty his pockets on the table. The
contents of his pockets did not result in the discovery of
inculpatory information. None of the information provided by
appellant after the invocation was inculpatory. Therefore, we
find the trial court's denial of the motion to suppress was
harmless error.
"'[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt;' otherwise the conviction under review must be set aside." Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L.Ed.2d 705 (1967)). "This standard requires a determination of 'whether there is a reasonable possibility that the evidence
- 14 - complained of might have contributed to the conviction.'" Id. (quoting Chapman, 386 U.S. at 23, 87 S. Ct. at 827).
Brant v. Commonwealth, 32 Va. App. 268, 278-79, 527 S.E.2d 476,
481 (2000).
"In making that determination, the reviewing court is to consider a host of factors, including the importance of the tainted evidence in the prosecution's case, whether that evidence was cumulative, the presence or absence of evidence corroborating or contradicting the tainted evidence on material points, and the overall strength of the prosecution's case."
Id. at 279, 527 S.E.2d at 481 (quoting Lilly, 258 Va. at 551, 523
S.E.2d at 209).
In this case, the information provided to the detectives
after appellant's invocation was harmless beyond a reasonable
doubt. Based on our review of the record, the information
obtained after the invocation was not important in the
prosecution's case against appellant because it was not
inculpatory and did not lead to inculpatory information.
Appellant argues his waiver of his Miranda rights on January
16, 1998 was not valid pursuant to the rule established in Edwards
v. Arizona, 451 U.S. 477 (1981). We disagree.
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
- 15 - 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 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).
Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470,
474-75 (1997) (emphasis added).
In Tipton, we held, "[t]he Edwards rule has not been expanded
to include non-custodial demands for an attorney or to
interrogation after an accused has been released from custody."
Tipton, 18 Va. App. at 834, 447 S.E.2d at 540.
- 16 - In this case, appellant was not in continuous custody. He
was released from custody after the January 4, 1998 interview and
was not re-interviewed until January 16, 1998. Therefore, under
Tipton, Edwards does not apply.
Appellant argues Tipton does not apply because there was a
violation of his Miranda rights during the initial interview.
This argument has no merit under the facts of this case because,
as we stated above, he did not provide the police with inculpatory
information after the point at which he argues he invoked his
right to counsel.
V.
Appellant contends the waiver of his Miranda rights on
January 16, 1998 was not valid. First, appellant argues the
waiver was tainted by the Edwards violation. For the reasons
discussed above, we find this argument without merit.
Second, appellant contends the waiver was the product of
police coercion, which rendered the waiver involuntary. Appellant
argues he was physically intimidated by a "belligerent and
threatening officer" when he was arrested on January 16.
Specifically, he contends a detective threatened to "hammer on"
him and the police made promises of leniency. We do not address
this issue because the record before us does not contain evidence
of that dialogue.
Rule 5A:25 requires the appellant to file, no later than the
time for filing his or her opening brief, an appendix. Rule
- 17 - 5A:25(a). The appendix must contain "any testimony and other
incidents of the case germane to the questions presented." Rule
5A:25(c)(3). In this case, the record is devoid of a transcript
of the January 16, 1998 interview, and the tape of the interview
begins after appellant admitted he committed the murder and does
not reflect the threats or promises of which appellant complains.
VI.
Appellant next contends the trial court erred in denying his
motion for a mistrial based on the Commonwealth's failure to
provide him with the entire videotape of the statement he made on
January 16, 1998, which, he argues, was a violation of Rule 3A:11.
Appellant also argues the trial court erred in denying his motion
to strike the admission of the January 16 statement as a sanction.
We disagree.
"The relief to be granted upon a violation of Rule 3A:11 is
within the discretion of the trial court, giving due regard to the
right of the accused to call for evidence in his favor and to
investigate and evaluate the evidence in preparation for trial."
Frye v. Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267, 277 (1986)
(citations omitted). "The remedial relief to be granted by the
trial court following a discovery violation or upon the late
disclosure of evidence is within the trial court's discretion and
will not be disturbed on appeal unless plainly wrong." Moreno v.
Commonwealth, 10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990)
(citations omitted).
- 18 - The trial court struck the portion of the tape that had not
been provided to appellant before trial and gave appellant the
opportunity to call Tori DeMaio, the witness he contends may have
been present at the murder scene and may have had actual knowledge
of the sequence of events, to testify. Appellant chose not to do
so. Further, appellant did not request sanctions for the
Commonwealth prior to listening to the tape and did not request a
continuance so the tape could be further reviewed. Therefore, we
find the trial court did not abuse its discretion in denying the
motion for a mistrial and the motion to strike.
For these reasons, we reverse appellant's convictions for
burglary, grand larceny, and vandalism and affirm his convictions
for capital murder, robbery, and use of a firearm.
Affirmed, in part, and reversed, in part.
- 19 - Benton, J., concurring and dissenting.
I concur in Parts I, II, III, and VI of the majority
opinion. Because I believe that the police violated Jason Wayne
Gregory's right against self-incrimination as enunciated in
Miranda v. Arizona, 384 U.S. 436 (1966), and Arizona v. Edwards,
451 U.S. 477 (1981), I dissent from Parts IV and V.
In denying Gregory's motion to suppress, the trial judge
found both that Gregory was not in custody and made no
unequivocal request for counsel on January 4, 1998. I believe
the evidence establishes that these findings are plainly wrong.
In determining whether a suspect is in custody for purposes of
Miranda, "the only relevant inquiry is how a reasonable man in
the suspect's position would have understood his situation."
Berkemer v. McCarty, 468 U.S. 420, 442 (1984). See also
Stansbury v. California, 511 U.S. 318, 322-23 (1994) (holding
that the objective circumstances must be examined to determine
whether the suspect was deprived of his freedom in a significant
way).
The evidence proved that a capias had been issued for the
arrest of Gregory. When Gregory telephoned the police on
January 4, he knew that he was wanted by two jurisdictions for
various alleged wrongs and that the capias existed. Gregory
testified that he "had to go with [the police detective] . . . .
I was in custody. I knew that."
- 20 - The officers who went to Gregory's home in marked police
vehicles and escorted him to the police station were also aware
of the capias for Gregory's arrest. The officers also knew from
the beginning of the encounter that they would arrest Gregory
for his previous violations. Thus, it does not matter that the
officers did not communicate this fact to Gregory. See id. at
323-24. They and Gregory knew the arrest would occur. During
the interview at the police station, the officers informed
Gregory of the capias and delivered him to the magistrate at the
end of their interview. He was the only suspect that the police
questioned at the station. All of these factors indicate that
Gregory was clearly in custody and any reasonable person with
Gregory's record and in his situation would have understood he
was in custody.
No evidence proved that Gregory was acting without
compulsion when the detectives escorted him to police
headquarters from his home. He was in custody, and the
interview that occurred on January 4 was a custodial
interrogation. During this interrogation, the officers
questioned Gregory concerning the death of James Michael
Lambrecht. Gregory told the officers during that interrogation
"I think I should talk to a lawyer." Although the detective to
whom he was speaking testified that Gregory had uttered a
question, "Think it's time for an attorney?," the videotape
supports Gregory's testimony. The tone and inflection of the
- 21 - detective's response, as well as his words, indicate that he
understood Gregory had made a declarative statement. The trial
judge was plainly wrong to disregard this evidence and Gregory's
testimony.
The record is undisputed that the officers ignored
Gregory's invocation of his right to speak to a lawyer and
continued questioning him. Gregory's statement resembles the
statement in McDaniel v. Commonwealth, 30 Va. App. 602, 518
S.E.2d 851 (1999) (en banc). There, we held that the statement,
"I think I would rather have an attorney here to speak for me,"
was an unequivocal request for counsel. 30 Va. App. at 606, 518
S.E.2d at 853. Therefore, I would hold that the officers in
this case should have honored Gregory's request for counsel and
that they violated his Fifth Amendment rights when they did not.
In unambiguous language, the Supreme Court has ruled as
follows:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.
- 22 - Miranda, 384 U.S. at 473-74 (1966). "[T]he admissibility of
statements obtained after the person in custody has decided to
[exercise Miranda rights] depends . . . on whether his 'right to
cut off questioning' was 'scrupulously honored.'" Michigan v.
Mosley, 423 U.S. 96, 104 (1975).
Further explaining Miranda, the Court held in Edwards,
"that 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."
451 U.S. at 484-85.
The rule of the Edwards case came as a corollary to Miranda's admonition that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." In such an instance, [the Supreme Court] had concluded in Miranda, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." In Edwards, [the Supreme Court] "reconfirm[ed] these views and, to lend them substance, emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." [The Court] concluded that reinterrogation may only occur if "the accused himself initiates further communication, exchanges, or conversations with the police. Thus, the prophylactic
- 23 - protections that the Miranda warnings 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. . . . "[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism."
Arizona v. Roberson, 486 U.S. 675, 680-81 (1988) (citations
omitted). These principles control our review of this case.
Gregory expressed "his desire to deal with the police only
through counsel," Edwards, 451 U.S. at 485, by stating, "I think
I should talk to a lawyer." The officers violated Miranda by
continuing the interrogation on January 4 and violated Edwards
by re-initiating questioning of Gregory on the same murder
investigation when they spoke to him on January 16. Because of
his previous assertion of his right to counsel, the officers
were not permitted to re-initiate a custodial interrogation of
Gregory on this same matter.
The fact that Gregory did not make any inculpatory
statements on January 4 does not mean that the officers did not
- 24 - violate his Miranda rights as enhanced in Edwards. If Gregory
had, in fact, confessed to the crime or made other inculpatory
statements on January 4, clearly those statements would have
been inadmissible because the officers did not read Gregory his
rights and they ignored him when he asserted them. By ignoring
Gregory's request for counsel, the police sent the unmistakable
message that he had no such right. Cf. United States v.
Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982) (noting that the
accused "knew from his experience the previous day that he could
end the interrogation by asking again to meet with an
attorney"). Clearly, when the police re-interrogated Gregory on
January 16 concerning Lambrecht's death, Gregory could have no
greater expectation that the police would honor a request for
counsel. This is especially true when the officers are
questioning him again about the same events they questioned him
after ignoring his earlier request for counsel. The net effect
of the officers' behavior on that date was to demonstrate to
Gregory that his right against self-incrimination was illusory
and that they would ignore any request he made for an attorney.
This behavior defies the rationale of Edwards. On this record,
the government has not met its "heavy burden" of demonstrating
that Gregory knowingly and intelligently waived his privilege
against self-incrimination and his right to counsel. See
Miranda, 384 U.S. at 475.
- 25 - The decision in Tipton v. Commonwealth, 18 Va. App. 832,
447 S.E.2d 539 (1994), does not control the outcome of this
case. The police conducted two interviews with Tipton. During
the initial interview, which Tipton conceded to be
non-custodial, see id. at 834, 447 S.E.2d at 540, and before
beginning the interrogation, the police gave Miranda warnings to
Tipton. Id. at 833, 447 S.E.2d at 540. After the police gave
those warnings, Tipton requested counsel. The police honored
his request and did not conduct an interrogation. Id. Thus,
Tipton suffered no Miranda violation because he exercised his
right to counsel at his first encounter and the police honored
it.
In each of the cases relied upon in Tipton, the police
ceased the initial interrogation upon the accused's request for
counsel. I further distinguish this case from one on which the
Tipton Court relied, McFadden v. Garraghty, 820 F.2d 654 (4th
Cir. 1987). In that case, as in this one, law enforcement
officials blatantly ignored a suspect's assertion of his Miranda
rights by re-initiating interrogation in violation of Edwards.
Id. at 658. Unlike in this case, however, the confession
ultimately used at trial in McFadden was obtained by a separate
law enforcement agency inquiring about a crime separate from the
one discussed in the initial interrogation. Id. at 660.
Therefore, the break in custody in this case does not have the
same effect as the break in McFadden and the Tipton rationale
- 26 - does not apply. Significantly, Tipton knew he could terminate a
police interrogation by invoking his right to counsel. Because
of the interrogating officer's violation of Miranda, Gregory did
not.
[T]he "relatively rigid requirement that interrogation must cease upon the accused's request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis." The Edwards rule thus serves the purpose of providing "clear and unequivocal" guidelines to the law enforcement profession. Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he "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."
Roberson, 486 U.S. at 681-82 (footnote and citation omitted).
Moreover, I believe that when the police interrogated Gregory
without "restrict[ing] the second interrogation to a crime that
had not been a subject of the earlier interrogation," they also
- 27 - failed to "scrupulously honor" his Fifth Amendment rights.
Mosley, 423 U.S. at 106.
For these reasons, I would hold that the officers violated
Edwards when they re-interrogated Gregory on January 16 after he
had asserted his Miranda rights. Because they obtained
Gregory's statements in violation of the United States
Constitution, the trial judge erred in refusing to suppress
those statements. Therefore, I would reverse the convictions
and remand this case for a new trial on the capital murder
charge. For the reasons stated in the majority opinion, I would
reverse and dismiss the burglary, grand larceny and vandalism
convictions.
- 28 -