Potts v. Commonwealth

546 S.E.2d 229, 35 Va. App. 485, 2001 Va. App. LEXIS 280

• Court: Court of Appeals of Virginia
• Decided: May 22, 2001
• Docket: Record 2854-99-1
• Status: Published

Opinions

AGEE, Judge.

On December 80, 1998, the appellant, Kevin Michael Potts (Potts), wás 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 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 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.

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?

DETECTIVE: Nope.

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.

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

[Potts ajppeared 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 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,

[although 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, 507 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, 101 S.Ct. 1880, 1885-86, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 469, 475, 86 S.Ct. 1602, 1625, 1628, 16 L.Ed.2d 694 (1966). If the suspect invokes his right to counsel during interrogation, “all police-initiated interrogation regarding any 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, 101 S.Ct. at 1884-86, 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

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,, 101 S.Ct. at 1884-85. Elaborating on this standard, the Court in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), recognized that

[tjhere 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, 103 S.Ct. at 2834. 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, 103 S.Ct. at 2834-36.

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 incidents of the custodial relationship.” Id. at 1045, 103 S.Ct. at 2834. 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, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (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, 99 S.Ct. 2560, 2567, 61 L.Ed.2d 197 (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 warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Id. at 725, 99 S.Ct. at 2572; 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. 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, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985).

Potts testified at the suppression hearing that while he was read his rights, he did not necessarily understand them. He 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, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (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.