Tuesday 23rd
October, 2001.
Kevin Michael Potts, Appellant,
against Record No. 2854-99-1 Circuit Court No. CR99-1700
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray, Annunziata, Bumgardner, Frank, Clements and Agee
Theresa B. Berry (Berry, Ermlich, Lomax & Bennett, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
By opinion dated May 22, 2001, a divided panel of this
Court affirmed the judgment of the trial court. See Potts v.
Commonwealth, 35 Va. App. 485, 546 S.E.2d 229 (2001). We
granted rehearing en banc and stayed the mandate of that
decision.
Upon rehearing en banc, the stay of this Court's May
22, 2001 mandate is lifted, and the judgment of the trial court
is affirmed for the reasons set forth in the majority panel
decision. Chief Judge Fitzpatrick, Judges Benton, Elder and
Clements dissent for those reasons expressed in the dissenting
opinion of the panel. See id. at 497-505, 546 S.E.2d at 235-39.
It is ordered that the trial court allow counsel for
the appellant an additional fee of $200 for services rendered
the appellant on the rehearing portion of this appeal, in
addition to counsel's costs and necessary direct out-of-pocket
expenses. This amount shall be added to the costs due the
Commonwealth in the May 22, 2001 mandate.
This order shall be published and certified to the
trial court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 2 - Tuesday 26th
June, 2001.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, Bray, Annunziata, Bumgardner, Frank, Clements and Agee
On June 5, 2001 came Kevin Michael Potts, the
appellant, by court-appointed counsel, and filed a petition
praying that the Court set aside the judgment rendered herein on
May 22, 2001, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing
en banc is granted, the mandate entered herein on May 22, 2001
is stayed pending the decision of the Court en banc, and the
appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule
5A:35. The appellant shall attach as an addendum to the opening
brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. It is further ordered that
- 3 - the appellant shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
- 4 - COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges Argued at Chesapeake, Virginia
KEVIN MICHAEL POTTS OPINION BY v. Record No. 2854-99-1 JUDGE G. STEVEN AGEE MAY 22, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge
Theresa B. Berry (Berry, Ermlich, Lomax & Meixel, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On December 30, 1998, the appellant, Kevin Michael Potts
(Potts), was arrested for the murder and conspiracy to commit the
murder of Troy Lee Wilson. After indictment and prior to trial, a
hearing was held July 23, 1999, upon Potts' motion to suppress his
December 30 confession to Wilson's murder. The trial court overruled
Potts' motion. On August 19, 1999, Potts entered a conditional
guilty plea in the Circuit Court of the City of Virginia Beach to
Wilson's murder, pursuant to a plea agreement reserving his right to
challenge the admission of his confession into evidence pursuant to
Code § 19.2-254 (the conspiracy charge being nolle prosequi). On
this appeal, Potts argues the trial court erred in not suppressing
- 5 - his confession, claiming it was made involuntarily. We disagree and
affirm the trial court's ruling and Potts' conviction.
I.
BACKGROUND
On the evening of December 9, 1998, Dawain Hopkins (Hopkins)
found himself unable to pay a debt owed to his cocaine supplier, Troy
Wilson (Wilson). To stall Wilson, Hopkins' friend, Kevin Potts,
paged Wilson and requested $40 of cocaine. Wilson and Potts agreed
to meet later that night at a secluded location.
At approximately 11:00 p.m., Potts arrived alone, planning to
kill Wilson. Upon Wilson's arrival, Potts distracted Wilson, causing
him to turn away from Potts. As Wilson turned, Potts stabbed him in
the back of the head. Wilson cried out and slumped to the ground,
the knife embedded in his skull.
Potts dragged the victim to nearby bushes, fled, but returned
almost immediately to find Wilson still alive. Potts spent the next
five minutes "having a conversation with [Wilson]," asking him such
questions as, "What happened to you? There's a knife in your head."
Afterwards, Potts took money and possessions belonging to Wilson and
attempted to further conceal the body, but was unable to retrieve the
knife embedded in Wilson's skull.
Potts returned the next day with a crowbar to recover the knife
and the cocaine Wilson had intended to sell him. Potts told Hopkins
what had happened, and the two returned to the crime scene. They dug
-6- a hole, buried the body and then threw the knife and some of Wilson's
possessions into a nearby lake.
On December 30, 1998, Detective Christopher C. Molleen of the
Virginia Beach Police Department learned that Potts was likely
involved in Wilson's disappearance. Hopkins had implicated Potts in
a statement made to another detective. That afternoon, Detective
Molleen arrested Potts in front of his mother's home and took him to
the police station. Upon arrival, Potts was placed in an interview
room, his handcuffs were removed, he was allowed to use the restroom
and offered something to drink.
Detective Molleen then entered the interview room, sat down,
opened a notebook and advised Potts of his Miranda rights by reading
from a printed card. The entire interview was recorded on videotape,
which is part of the record. The detective then asked Potts if he
understood his rights, and Potts said that he did.
At the time of the interview, Detective Molleen knew Potts was
seventeen years old and not attending school regularly. He also knew
Potts had previously been arrested on several minor charges
(destruction of property, petit larceny); however, Detective Molleen
did not know whether those arrests involved police interrogation.
Detective Molleen likely knew Potts' mother had made several demands
to other police officers that her son not be questioned without the
presence of an attorney.
-7- Approximately a minute into the interview, Potts stated that he
wanted to speak with an attorney. The following exchange and events
are revealed on the videotape:
DETECTIVE: I think some things kind of got out of hand a couple of weeks back, situation got out control, maybe Dawain was in a little bit of trouble with a particular person, maybe you tried to help him out, it got out of hand, maybe somebody got hurt as a result of it, does that sound kind of familiar?
POTTS: I don't know. I want to talk to a lawyer.
DETECTIVE: You want to talk to a lawyer.
POTTS: And can I contact my mom?
DETECTIVE: Nope.
POTTS: She can't talk to me?
POTTS: Nope? What's up with the lawyer, then?
DETECTIVE: What's up with the lawyer? You'll get one when you get one.
Detective Molleen, from the moment Potts stated he wanted to speak
with a lawyer until this point in the exchange, sat straight up in
his chair, turned his body and chair away from Potts toward the
table, wrote Potts' statement in his notes, set his pen down and
closed the notebook. Upon Potts' next question, the officer turned
his head to face Potts, but his body and chair remained facing the
table, with his writing hand and arm resting next to his closed
notebook and pen. Detective Molleen spoke in a conversational tone.
-8- POTTS: What's that mean?
DETECTIVE: I can't put you on the phone to contact one right now, 'cause they ain't workin' right now. Okay? You're arrested, and you'll be charged and we'll just go from there.
POTTS: Well fuck it, then, I don't want a damn lawyer. What do you want to know?
DETECTIVE: Just the truth, Kevin, just the truth. Things get out of control?
Potts then confessed that he had killed Wilson. About
forty-five seconds elapsed between Potts' request to "talk to a
lawyer" and his question, "What do you want to know?"
Approximately twenty-five minutes later, Detective Molleen
briefly left the room. Upon returning, Detective Molleen told Potts
he was going to advise him of his rights again. Potts answered, "I
know them." Detective Molleen said he understood that but again read
Potts his Miranda rights. The detective then asked Potts, "Do you
want to talk about this thing again?" Potts replied, "Sure." As
Detective Molleen took notes, Potts again confessed. At a later
break in the interview, while Potts was alone, he said out loud:
"I'm going jail for the rest of my life."
At the suppression hearing, Potts testified (1) that the night
before his arrest, he and Hopkins had smoked crack throughout the
night; (2) when they ran out of crack on the morning of the arrest,
they began smoking marijuana; and (3) the last time he had slept
prior to the arrest was two days before. However, Detective Molleen
testified that during the interview
-9- [Potts a]ppeared to be fine. Didn't look like he was intoxicated. I didn't smell alcohol. Didn't look like he was on drugs. Coherent. We had a good conversation, and he was articulate in his answer.
Potts admitted he never told the detective during the interview that
he was either high on drugs or tired.
Potts testified that, "I had been informed of what my rights
were, but it doesn't necessarily mean that you know it [sic]." Potts
further testified that he interpreted Detective Molleen's statement,
"You'll get [an attorney] when you get one," to mean he did not have
a right to an attorney and he "assumed right off the fact that I
wasn't going to get one anytime."
Detective Molleen testified that he considered the interview
over the moment Potts stated he wanted to speak with an attorney, and
he prepared to leave the room. He explained that he told Potts he
could not speak with his mother at that time because
[t]here were many things I had to do with the arrest procedures for him. Ultimately a couple of hours down the road he was going to run into her over at intake. It wasn't part of the procedure, and at that time it wasn't that I could work it in.
The detective testified that his statement, "You'll get one when
you get one," was not made in an attempt to elicit an incriminating
response from Potts. Rather, the statement reflects, "[I]t's not
part of the police department procedure for me to provide him with an
-10- attorney, and it's pretty much incumbent on his part to take care of
that arrangement."
II.
ANALYSIS
In reviewing a trial court's denial of a motion to suppress, we
view the evidence in the light most favorable to the Commonwealth as
the party that prevailed below, and grant to its evidence "all
reasonable inferences deducible therefrom." Giles v. Commonwealth,
28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998) (citations omitted).
In addition,
[a]lthough we review the trial court's findings of historical fact only for "clear error," we review de novo the trial court's application of defined legal standards to the facts of the case. Whether the defendant invoked his right or her right to counsel, and thereafter knowingly and voluntarily waived that right, requires that we apply defined legal standards to the historical facts.
Id. at 532-33, 597 S.E.2d at 105 (citations omitted).
In order for the confession of a criminal defendant in custody
to be admissible as evidence at trial, the police must advise the
defendant of the right to have counsel present during interrogation.
See Quinn v. Commonwealth, 25 Va. App. 702,
710-11, 492 S.E.2d 470, 474 (1997); see also Edwards v. Arizona, 451
U.S. 477, 485-86 (1981); Miranda v. Arizona, 384 U.S. 436, 469, 475
(1966). If the suspect invokes his right to counsel during
interrogation, "all police-initiated interrogation regarding any
-11- 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." Quinn, 25 Va. App. at 710-11, 492
S.E.2d at 474-75.
The United States Supreme Court in Edwards, 451 U.S. at 484-87,
adopted a three-part test to evaluate the admissibility of a
statement given after the right to counsel has been invoked.
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 discussion or meetings with the police. Third, 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.
Giles, 28 Va. App. at 532, 507 S.E.2d at 105 (citations omitted).
Without question, Potts unequivocally invoked his right to
counsel, so the first prong of the Edwards test is met. We must
determine (1) whether Potts initiated the further discussion with
police after he invoked his right to counsel and, if so, (2) whether
that discussion without legal counsel present was done voluntarily.
In regard to Edwards' second prong, it is clear from the record
that Potts initiated discussions with police after invoking his right
to counsel. In Edwards, the Supreme Court of the United States held
that
-12- 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. Elaborating on this standard, the Court in
Oregon v. Bradshaw, 462 U.S. 1039 (1983), recognized that
[t]here are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.
Id. at 1045. However, the Court held that a custodial suspect's
question, "Well, what is going to happen to me now?," asked after the
request for counsel but prior to further interrogation by the
authorities, initiated further conversation, validating the suspect's
subsequent waiver of his Miranda rights. Id. at 1045-47.
Upon Potts' invocation of the right to counsel, Detective
Molleen wrote the statement, "I want to talk to a lawyer," in his
notes and closed the notebook. Detective Molleen then prepared to
leave the room when Potts asked the detective, "Can I contact my
mom?" This question and the detective's answer, as well as the
exchange following it, were permissible as "relating to routine
-13- incidents of the custodial relationship." Id. at 1045. These
inquiries alone would not constitute an initiation of conversations
with the police sufficient to waive the right to counsel.
However, after the detective answered Potts' procedural
questions, Potts unequivocally continued the conversation, waiving
his right to counsel when he told the detective, "[W]ell fuck it,
then, I don't want a damn lawyer. What do you want to know?" In
this case, Potts' waiver of his right to counsel was just as clear
and unequivocal as his prior assertion of it. Potts' statement and
inquiry plainly show a willingness to further discuss the detective's
investigation. The second prong of the Edwards admissibility test is
met.
As to the last prong of the Edwards test, Potts claims he was
subjected to coercive circumstances and, therefore, his waiver and
ensuing confession were involuntary. In assessing voluntariness, 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.'" Stockton v. Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). In determining whether the waiver was knowing and intelligent, the court must examine the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 717 (1979). Where a juvenile is involved, "[t]his includes evaluation of the juvenile's age, experience, education, background, and intelligence, and whether he has the capacity to understand the
-14- warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Id. at 725; see also Green v. Commonwealth, 223 Va. 706, 710, 292 S.E.2d 605, 607 (1982); Harris v. Commonwealth, 217 Va. 715, 719, 232 S.E.2d 751, 755 (1977); Grogg v. Commonwealth, 6 Va. App. 598, 612, 371 S.E.2d 549, 556 (1988).
Roberts v. Commonwealth, 18 Va. App. 554, 557-58, 445 S.E.2d 709, 711
(1994).
In reviewing the totality of the circumstances in this case, the
trial court's ruling that Potts' confession was knowingly,
intelligently and voluntarily made is supported by the evidence.
While Potts was seventeen years old and perhaps a high school
dropout at the time of his arrest, he appears intelligent and
articulate. Detective Molleen testified that Potts appeared to be
fine and did not look high on drugs or sleep deprived. Detective
Molleen's impression is clearly supported by the videotape of the
interview, from which the trial court could reasonably find that
Potts' conversation was appropriate, his answers were responsive, he
did not have difficulty focusing on what was transpiring, and while
he cried on occasion, he remained calm.
Although "it is desirable to have a parent, counsel or some
other interested adult or guardian present when . . . a juvenile
waives fundamental constitutional rights and confesses to a serious
crime . . . , the mere absence of a parent or counsel does not render
the waiver invalid." Grogg, 6 Va. App. at 613, 371 S.E.2d at 557.
-15- The absence of a parent is but one factor to be considered in the
totality of the circumstances and is insufficient by itself to render
Potts' confession involuntary. Id.; see also Novak v. Commonwealth,
20 Va. App. 373, 387-88, 457 S.E.2d 402, 409 (1995) (absence of
parent at questioning of sixteen-year-old defendant insufficient to
preclude finding that confession was voluntary).
We find no support for the allegation of coercion. Potts was
questioned by one plainclothes detective in a room large enough for
him to get up and move around, and he wore no restraints. Cf. Grogg,
6 Va. App. at 614, 371 S.E.2d at 557 (questioning of juvenile
defendant, not in handcuffs, by three plainclothes officers was not
"coercive" environment). As Potts confirmed at the suppression
hearing, Detective Molleen never threatened him or told him to keep
talking once he had waived his rights.
At no time did Detective Molleen tell Potts that he could not
speak with an attorney; instead, Detective Molleen told Potts that he
could not provide him with one right then and that Potts would have
one when he arranged for one. As the Supreme Court of Virginia has
observed: "Miranda nowhere requires that a suspect be told he has
the right to immediate appointment of counsel. Indeed, language in
Miranda negates this very proposition." Poyner v. Commonwealth, 229
Va. 401, 409, 329 S.E.2d 815, 822, cert. denied, 474 U.S. 865 (1985).
Potts testified at the suppression hearing that while he was
read his rights, he did not necessarily understand them. He
-16- testified that he thought he would be able to go home if he talked to
the police. Assuming Potts mistakenly believed this, he also
admitted that Detective Molleen never threatened him, never
encouraged him to talk and never promised leniency or gave any other
inducements. Potts' mistake, therefore, was not the result of police
coercion, the necessary predicate for a finding that a confession is
involuntary. Bottenfield v. Commonwealth, 25 Va. App. 316, 323, 487
S.E.2d 883, 887 (1997) (citing Colorado v. Connelly, 479 U.S. 157,
167 (1986)).
Upon a review of the record and applicable law, we hold the
trial court could reasonably find that Potts' confession was properly
admissible under Edwards. Potts initiated the discussion with police
after invoking his right to counsel. The Potts initiated
conversation led to his subsequent confession without legal counsel
present and that confession was knowingly, intelligently and
voluntarily made.
The denial of the motion to suppress was proper, and the
conviction is, accordingly, affirmed.
Affirmed.
-17- Benton, J., dissenting.
I would hold that the trial judge admitted the juvenile's
statements in evidence in violation of the Fifth Amendment.
One of the constitutional safeguards established by Miranda v.
Arizona, 384 U.S. 436 (1966), is the right of an accused person to
have an attorney present at a custodial interrogation and to end the
interrogation by invoking this right. Id. at 469, 474-75. See also
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). The Supreme Court
has held that "the rigid rule [of Miranda means] that an accused's
request for an attorney is per se an invocation of his Fifth
Amendment rights." Fare v. Michael C., 442 U.S. 707, 719 (1979).
Thus, if, in violation of these rights, "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."
Miranda, 384 U.S. at 475 (citing Escobedo v. Illinois, 378 U.S. 478,
490 n.14 (1964)).
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." Pursuant to Edwards and its progeny, once the
-18- 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. 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." Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474
(1997) (citations omitted).
The Supreme Court has also explained "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." Edwards, 451 U.S. at 484-85. The
rule in "Edwards focuses on the state of mind of the suspect and not
of the police." Arizona v. Roberson, 486 U.S. 675, 687 (1988).
Before Detective Molleen began interrogating Kevin Michael
Potts, who was seventeen years old and lived with his parents, he was
aware that Potts' mother had refused permission for the police to
interview Potts. The detective disregarded her express request.
After he read Miranda warnings to Potts, the following colloquy
occurred:
-19- DET. MOLLEEN: I think some things kind of got out of hand a couple of weeks back, situation got out of control, maybe Dawain was in a little bit of trouble with a particular person, maybe you tried to help him out, it got out of hand, maybe somebody got hurt as a result of it, does that sound kind of familiar? POTTS: I don't know. I want to talk to a lawyer. DET. MOLLEEN: You want to talk to a lawyer. POTTS: And can I contact my mom? DET. MOLLEEN: Nope. POTTS: She can't talk to me? DET. MOLLEEN: Nope. POTTS: Nope? What's up with the lawyer, then? DET. MOLLEEN: What's up with the lawyer? You'll get one when you get one. POTTS: What's that mean? DET. MOLLEEN: I can't put you on the phone to contact one right now, 'cause they ain't workin' right now. Okay? You're arrested, and you'll be charged and we'll just go from there. POTTS: Well fuck it, then, I don't want a damn lawyer. What do you want to know? DET. MOLLEEN: Just the truth, Kevin, just the truth. Things get out of control? Potts unambiguously requested to speak to an attorney.
Mimicking Potts' request, the detective gave no indication that it
would be honored and, thus, effectively ignored that request. Potts
next asked to contact his mother, which was a rational way for a
juvenile to seek an adult's assistance in obtaining an attorney. If
we assume the detective intended to honor Potts' request for an
attorney, it would appear that the detective would have either
permitted Potts to contact his parents or told him when contact would
be permitted. Instead, by his blunt, terse refusal of Potts' request
to speak to his mother, an adult Potts trusted, the detective
-20- effectively and immediately denied Potts the right to an attorney.
By telling Potts, "you'll get [an attorney] when you get one," the
detective essentially communicated to Potts that he had to make those
arrangements himself. Indeed, the detective testified at the
hearing, "it's pretty much incumbent on his part to take care of that
arrangement." At no time did the detective indicate to Potts how his
right to an attorney would be honored or when. The detective's
statement, "you're arrested, and you'll be charged and we'll just go
from there," effectively communicated a rejection of Potts' request
for counsel.
"The concern of the Court in Miranda was that the 'interrogation
environment' created by the interplay of interrogation and custody
would 'subjugate the individual to the will of his examiner' and
thereby undermine the privilege against compulsory self-
incrimination." Rhode Island v. Innis, 446 U.S. 291, 299 (1980). As
the Court noted in Miranda: "If authorities conclude that they will
not provide counsel during a reasonable period of time in which
investigation . . . is carried out, they may refrain from doing so
without violating the person's Fifth Amendment privilege so long as
they do not question him during that time." 384 U.S. at 474.
Miranda and Edwards were intended to "dispel the compulsion inherent
in custodial surroundings." Id. at 458. We ignore reality if we
assume a juvenile, such as Potts, has the means, maturity, and
capability to secure on his or her own initiative, while confined in
-21- jail, an attorney to assist him or her. See Fare, 442 U.S. at 725
(including a juvenile's age in the determination whether a waiver
occurred).
In addition, the Supreme Court has expressly ruled that
"custodial interrogation for purposes of Miranda includes both
express questioning and words or action that . . . the officer knows
or reasonably should know are likely to 'have . . . the force of a
question on the accused,' and therefore be reasonably likely to
elicit an incriminating response." Pennsylvania v. Muniz, 496 U.S.
582, 601 (1990) (citation omitted). I believe the detective's
mimicking responses were designed to cause Potts to engage in
additional conversation. They had the effect of stimulating
conversation and were the functional equivalent of continuing
interrogation. The rule in Edwards was not intended to give the law
enforcement officers an opportunity to use interrogation tactics to
snare unwary teenagers into asking questions about the means to
effect their Miranda rights and then to use those inquiries as a
guise to blatantly disregard constitutionally required procedures.
When Potts asked to contact his mother, who was his obvious means of
securing an attorney, the detective curtly denied that request.
Following this denial, the detective's further mimicking statements,
"What's up with the lawyer? You'll get one when you get one,"
effectively refused to honor Potts' request. Seeking some
explanation about his means of contacting an attorney, which the
-22- detective's responses certainly made illusory, Potts was again
rebuffed by the detective's response that no attorneys were working.
This response only served, as did the others, to eliminate Potts'
options for obtaining an attorney.
The officer's technique manifestly raised the level of isolation
and hostility imposed on this juvenile by denying him even the most
basic assurance that his request for counsel would be honored.
Indeed, the detective never told Potts that the police would honor
his request for an attorney. His responses to Potts' inquiries about
an attorney conveyed the unmistakable message that the detective
considered Potts' request to be frivolous and that an attorney might
arrive some day "when [Potts arranged to] get one." Potts'
exasperated statement, "I don't want . . . a lawyer," was the
culmination of impermissible conduct by the detective. Thus, I would
hold that the detective's curt and mimicking responses constituted
badgering that was a continuation of the interrogation in violation
of Miranda. I would also hold that Potts' inquiries were "so routine
that they cannot be fairly said to represent a desire . . . to . . .
'initiate' a conversation in the sense in which that word was used in
Edwards." Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983).
In addition to these violations of Miranda and Edwards, the
record establishes that the Commonwealth failed to prove Potts'
statements were voluntarily, knowingly, and intelligently made. See
-23- Miranda, 384 U.S. at 444. Even before Miranda, the Fifth Amendment
required that confessions be found voluntary before they could be
admitted as evidence. See Dickerson v. United States, 530 U.S. 428,
433 (2000). In making the determination whether a statement was
voluntarily, knowingly, and intelligently made, the trial judge must
examine the totality of the circumstances, including the
characteristics of the accused, and determine whether the accused's
will was overborne by the circumstances surrounding the giving of the
confession. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).
The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602 (1961). The Supreme Court
recently reaffirmed that it has "never abandoned this
. . . jurisprudence, and thus continue[s] to exclude confessions that
were obtained involuntarily." Dickerson, 530 U.S. at 434.
Even if we assume, contrary to the evidence, that Potts
initiated the conversation that led to the confession, the Supreme
Court has ruled as follows:
If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly
-24- one-sided, it is likely that the officers will say or do something that clearly would be "interrogation." In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. Edwards, 451 U.S. at 486 n.9. Furthermore, the principle is also
well established that "even if a conversation taking place after the
accused has 'expressed his desire to deal with the police only
through counsel,' is initiated by the accused, where reinterrogation
follows, the burden remains upon the prosecution to show that
subsequent events indicated a waiver of the Fifth Amendment right to
have counsel present during the interrogation." Bradshaw, 462 U.S.
at 1044. See also Michigan v. Jackson, 475 U.S. 625, 633 n.6 (1986)
(noting that the accused's request for counsel is "an extremely
important fact" in considering whether there was a valid subsequent
waiver of the right to counsel).
Noting that special problems exist with respect to waivers by
juveniles, the Supreme Court has ruled that "[i]f counsel was not
present for some permissible reason when an admission was obtained
[from a juvenile], the greatest care must be taken to assure that the
admission was voluntary, in the sense not only that it was not
coerced or suggested, but also that it was not the product of
ignorance of rights or of adolescent fantasy, fright or despair." In
re Gault, 387 U.S. 1, 55 (1967). See also Haley v. Ohio, 332 U.S.
-25- 596, 599-600 (1948). Clearly, the detective who interrogated Potts
did not use "the greatest care" to ensure that Potts' "admission was
voluntary." Id. First, he ignored Potts' request for counsel. He
then flatly refused to allow Potts to consult with his parent, a
trusted adult who had the wherewithal to secure counsel for Potts,
and, indeed, who had requested the police not to question Potts in
her absence. As if to ensure that Potts would feel the coercive
nature of his detention, the officer next misrepresented to Potts
that no lawyer could be secured at that hour. Lastly, he told Potts
that the process would continue without informing Potts whether or
when he would have an attorney. In short, this officer conveyed to
Potts the unmistakable message that he was on his own in trying to
secure an attorney and in dealing with the police.
Recognizing again the special problems of juveniles, the Supreme
Court observed the following in a case where the juvenile failed to
ask for a lawyer or parent:
[The period] -- during which time the boy's mother unsuccessfully tried to see him and he was cut off from contact with any lawyer or adult advisor -- gives the case an ominous cast. The prosecution says that the boy was advised of his right to counsel, but that he did not ask either for a lawyer or for his parents. But a 14-year- old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests
-26- or how to get the benefits of his constitutional rights. . . . He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights - from someone concerned with securing him those rights - and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights. Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962).
III.
In summary, the record in this case establishes that the
detective denied Potts' express request for counsel; he denied Potts'
explicit request to speak to his mother, which was an implicit
request for aid in the securing of his rights; and he refused those
requests in such a fashion that Potts was given the unmistakable
message that he had to fend for himself in dealing with the police.
I would hold that the record established a violation of Miranda, a
violation of Edwards, and a confession that was not voluntary,
knowing, or intelligent. Accordingly, I would hold that the trial
judge erred in refusing to suppress the confession, and I would
reverse the conviction and remand for a new trial.
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