Michael Defrancisco v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MICHAEL DEFRANCISCO
MEMORANDUM OPINION * BY
v. Record No. 1427-99-1 JUDGE NELSON T. OVERTON
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
Fred C. Hardwick, II (Eusner & Hardwick,
P.C., on brief), for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his convictions of robbery, in violation of
Code § 18.2-58, and possession of cocaine, in violation of Code
§ 18.2-250, Michael Defrancisco contends that the trial court
erred in denying his motion to suppress statements made in
violation of his right to counsel. Finding that Defrancisco did
invoke his right to counsel, we reverse the judgment of the
trial court.
The facts are not in dispute.
On July 10, 1998, Defrancisco was arrested and brought to
the Hampton police station for questioning involving the rape
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
and robbery of Shirley Saunders, as well as the cocaine found in
a search of Defrancisco's residence. At the station, Detective
Jimmy Forbes advised Defrancisco of his rights pursuant to
Miranda, which Defrancisco acknowledged he understood.
Defrancisco then asked Detective Forbes to call his parents,
which Detective Forbes did, leaving Defrancisco to be questioned
by Sergeant Payne. Defrancisco asked Sergeant Payne if he could
call a lawyer before answering any questions, to which Sergeant
Payne responded, "Sure, that's your right. You can do whatever
you want to do." Defrancisco then stated, "Well, I think I'd
like to call a lawyer if I could."
Sergeant Payne left the interrogation room and informed
Detective Forbes of Defrancisco's statements. Detective Forbes
re-entered the room and commented to Defrancisco that, "Hey, I
understand from [Sergeant] Payne that you want an attorney,
okay." Defrancisco replied, "No. I said if you can get one, I
would like him." Detective Forbes then told Defrancisco that he
could call an attorney from the magistrate's office, located
across the street. Detective Forbes warned that, "once you're
over there, it's hard for me to talk with you, but we will do
whatever you want to do. I would like to talk now."
Defrancisco then replied, "Okay, sit down, let's talk."
Defrancisco contends that the trial court erred in denying
his motion to suppress statements made to the detectives. He
argues the statements were elicited after he had invoked his
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right to counsel, in violation of his Sixth Amendment rights.
We agree.
"[An accused] subject to custodial interrogation has the
right to consult with an attorney and to have counsel present
during questioning, and . . . the police must explain this right
[to the accused] . . . before questioning begins." Davis v.
United States, 512 U.S. 452, 457 (1994) (citing Miranda v.
Arizona, 384 U.S. 436, 469-73 (1966)). Defrancisco does not
dispute that his rights were explained to him fully and timely.
Once Defrancisco requested a lawyer, however, the
detectives were bound to respect the invocation of his rights
under Miranda. "If [the accused] requests counsel, 'the
interrogation must cease until an attorney is present.'"
Edwards v. Arizona, 451 U.S. 477, 482 (1981) (citation omitted).
Defrancisco indicated to Sergeant Payne that he wanted a lawyer.
His statement, "I think I would like to have a lawyer, if I
could," was sufficiently clear "that a reasonable police officer
in the circumstances would understand the statement to be a
request for an attorney." Davis, 512 U.S. at 459. See McDaniel
v. Commonwealth, 30 Va. App. 602, 606, 518 S.E.2d 851, 853
(1999) (en banc) (the statement "I think I would rather have an
attorney here to speak for me" was found to be an invocation of
McDaniel's right to counsel). Furthermore, Sergeant Payne
testified that, after Defrancisco made the statement, he exited
the room and "there was discussions [sic] about making
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arrangements for him to call a lawyer." It is clear from the
record that the detectives did, in fact, understand that
Defrancisco was requesting an attorney.
The Commonwealth argues that the subsequent statement made
by Defrancisco, "No, I said if you can get one, I would like
him," was not an unambiguous invocation of rights, but rather a
conditional request. At the point at which this subsequent
statement was made, however, Defrancisco had already invoked his
right to counsel. "Once an accused invokes his right to 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.'"
Giles v. Commonwealth, 28 Va. App. 527, 531-32, 507 S.E.2d 102,
105 (1998) (citation omitted).
The Commonwealth never demonstrated at the motion hearing
that any waiver by Defrancisco was purely voluntary. Contact
between the officers and Defrancisco was resumed by the
officers, not the accused. Indeed, the officers pressured
Defrancisco by intimating that calling a lawyer would make the
process more difficult. The Commonwealth's assertion that the
officers did not engage in "heavy-handed police tactics" may
well be true, but the Commonwealth did not meet its burden of
showing that the subsequent waiver of rights was purely
voluntary.
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Accordingly, the judgment of the trial court is reversed.
The case is remanded for further proceedings, if the
Commonwealth be so advised.
Reversed and remanded.
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