Commonwealth v. LaJuan Josea Davis ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2937-02-2 JUDGE ROBERT J. HUMPHREYS
MAY 6, 2003
LAJUAN JOSEA DAVIS
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
James E. Kulp, Judge Designate
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
Charles J. Kerns, Jr. (James C. Breeden;
McKerns & Hill; Hubbard, Breeden & Terry, on
brief), for appellee.
The Commonwealth of Virginia appeals a decision of the
trial court granting LaJuan Josea Davis' motion to suppress
evidence pertaining to his indictment for murder. The
Commonwealth contends the trial court erred in finding that the
statement Davis provided to police was obtained in violation of
Davis' Miranda 1 rights. For the reasons that follow, we affirm
the decision of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
I.
In reviewing the ruling of a trial court on a motion to
suppress, we "consider the evidence in the light most favorable
to the prevailing party below." Commonwealth v. Rice, 28
Va. App. 374, 377, 504 S.E.2d 877, 878 (1998).
On December 1, 2000, Davis was arrested in Baltimore,
Maryland, for a murder committed several months earlier in
Maryland. Davis was brought to the homicide unit at the
Baltimore police headquarters. Once at police headquarters, at
about 11:00 or 11:30 a.m., Davis was interviewed by Detective
Dennis Raftery of the Baltimore Police Department. Detective
Raftery told Davis that he wanted to talk only about the
Maryland offense. Detective Raftery then read Davis his Miranda
rights. Davis asserted his right to counsel at that time, and
Raftery ended the interview.
Because Detective Raftery knew that Davis was also
suspected of having committed a murder in Westmoreland County,
Virginia, Raftery had already contacted Officer Bill England of
the Westmoreland County Sheriff's Department to notify England
of Davis' arrest. Officer England, who had been attempting to
locate Davis for "six" months, traveled immediately to
Baltimore. He arrived at Baltimore police headquarters
approximately three and one-half hours after Detective Raftery
had ended his interview with Davis.
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When Officer England arrived, Davis was still in the
interrogation room. Detective Raftery told Officer England that
Davis had asserted his right to counsel concerning the Maryland
offense. Officer England then entered the interrogation room
with Davis. England introduced himself to Davis and advised
Davis of the pending Virginia charges. England told Davis that
a co-suspect in the Virginia murder, Dion Carter, had made
statements implicating Davis as the actual perpetrator of the
murder. Specifically, England told Davis that Carter said it
was Davis' idea to kill the victim, after having robbed him and
taken his wallet, and that Davis then took the victim "out to
the tree line or wood line and shot him." 2 England also told
Davis that Carter "was willing to give [police] the shotgun and
the wallet and that for further consideration he was willing to
testify against [Davis]."
Davis had remained silent until Officer England told him
the statements allegedly made by Carter. At that point, Davis
"put his hands on his face and he literally put his face into
his lap and he came back up and he started to tear up and he
said, I cannot believe [Carter] said that about me. That is not
what happened. But I will tell you what happened." Officer
England then told Davis that he "had to get some stuff" but
"would be back in a little bit."
2
Officer England had not actually received this information
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After speaking with "two assistant state attorneys from the
City of Baltimore" and the Commonwealth's Attorney for
Westmoreland County about "what [he] should do," Officer England
returned to the interrogation room to interview Davis. England
asked Davis if he was still willing to cooperate, and Davis said
"Yes." Officer England then advised Davis of his Miranda rights
and had Davis execute a written waiver. At that time, Davis
gave the statement suppressed by the trial court.
Prior to his trial in circuit court on the Virginia murder
charge, Davis raised a motion to suppress the statement he gave
to Officer England. Davis contended the statement was elicited
in violation of the "5th and 14th Amendments to the U.S.
Constitutions [sic], comparable provisions of the Virginia
Constitution, and the case of Edwards v. Arizona, 451 U.S. 477(1981), and its progeny."
During the hearing on the motion, Officer England testified
that he was an experienced police officer, that he had twenty
years of experience in conducting criminal investigations, and
that he had interviewed "numerous" criminal suspects. He
acknowledged that, based upon his prior training and experience,
he was aware that "telling a suspect that a co-defendant or a
co-suspect has flipped on him or implicated him" is an
"effective technique" for encouraging a suspect to cooperate
from Carter, but had learned it from Carter's aunt.
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with authorities and provide a statement. Indeed, he agreed
that the use of this particular technique was "reasonably likely
to elicit a response" from a suspect. However, Officer England
testified that when he talked to Davis about the charges he "was
not in that frame of mind," but was merely "blow[ing] off some
steam" in relief that Davis had finally been apprehended. He
stated that he was "caught" "off guard" when Davis responded to
his comments.
Davis also testified during the suppression hearing. He
testified that he told Officer Raftery he did not want to see
the Virginia officers. He stated that when Officer England
entered the interview room, he told England he did not want to
speak to him and that he had requested a lawyer. Davis claimed
England, nevertheless, continued talking to him, telling him
that he was in "trouble," and mentioning the death penalty "a
few" times. Davis further testified that he finally decided to
talk to Officer England because he was "scared," "tired," and
"worn down."
At the close of the evidence, Davis argued his statement
should be suppressed because Officer England had violated the
rule set forth in Edwards. He contended Officer England knew he
had invoked his right to counsel, that he had not initiated the
discussion with England, and that England's discussion with him
was the functional equivalent of an interrogation.
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In response, the Commonwealth argued that Davis had not
asserted his right to counsel for the Virginia offense, but only
for the Maryland offense. The Commonwealth further argued that,
after a break in the discussion (the 30-45 minutes during which
Officer England left the interrogation room), Davis initiated
the discussion about the Virginia charges, thereby knowingly and
intelligently waiving his right to counsel. Thus, the
Commonwealth contended there was no violation of Davis' Miranda
rights.
The trial court granted Davis' motion to suppress, finding:
the defendant was arrested in Maryland on
December 1st, 2000. He was advised by
Detective Raftery of his Miranda rights and
the defendant orally invoked his right to
counsel. The defendant was told that the
Virginia authorities were coming but there
never was a request by the defendant to see
or speak to the Virginia authorities.
When the Virginia authorities arrived in
Maryland they were told that the defendant,
after having been advised of his Miranda
rights, had invoked his right to counsel.
From the time of the defendant's arrest
until [Officer England] spoke to him, the
defendant was continuously in custody and no
attorney was ever present during the events
in question. The issue in this motion
raises the question about a Fifth Amendment
right to counsel and not a Sixth Amendment
right to counsel.
In Edwards [v.] Arizona, 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
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of the questioning.
* * * * * * *
An exception to the Edwards rule is where
the defendant initiates a conversation with
the authorities. The evidence before the
Court shows that . . . defendant neither
asked or sought in any way to speak with the
Virginia authorities. If the Court accepts
[Officer England's] testimony that he had no
expectation or desire to interrogate the
defendant but just wanted to see the person
that he had been pursuing for six months,
the Court must still examine whether
[Officer England's] actions in telling the
defendant what his co-defendant Carter had
said was a functional equivalent of
interrogation.
* * * * * * *
In this case, [Officer England] testified
that he had been trained in interrogation
techniques and that one of the ways to
usually obtain a response is to tell his
suspect that his co-defendant has made a
statement casting the blame on the suspect.
[Officer England] testified that he in fact
told the defendant that his co-defendant,
who is Dion Clark [sic], had given a
statement inculpating the defendant. The
Court finds that [Officer] England's actions
were the functional equivalent to
interrogation and, consequently, was an
interrogation initiated by the authorities
and not by the defendant.
II.
On appeal, the Commonwealth contends only that the trial
court erred in finding Officer England's conduct was the
functional equivalent of interrogation and that Davis' statement
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was, therefore, obtained in violation of his Miranda rights. We
disagree.
The Commonwealth has the burden to show that the trial
court's decision was erroneous upon an appeal from an order
granting a defendant's motion to suppress. See Stanley v.
Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993).
We review the trial court's findings of historical fact only for
"clear error," but we review de novo the trial court's
application of defined legal standards to the particular facts
of a case. See Ornelas v. United States, 517 U.S. 690, 699
(1996). "Whether a defendant 'invoked' his Miranda right to
counsel during custodial interrogation and whether he 'waived'
this right, are determined by applying judicially declared
standards." Quinn v. Commonwealth, 25 Va. App. 702, 713, 492
S.E.2d 470, 474-75 (1997) (citing Davis v. United States, 512
U.S. 452, 457 (1994) (noting the standard for invocation); Moran
v. Burbine, 475 U.S. 412, 421 (1986) (noting the standard for
waiver)).
Included among the safeguards established in
Miranda is the right of a suspect to have
counsel present at any custodial
interrogation and to terminate the
interrogation by invoking this right. See
Edwards v. Arizona, [451 U.S. at 485-86];
Miranda, [384 U.S. at 469, 475]; see also
Correll v. Commonwealth, 232 Va. 454, 462,
352 S.E.2d 352, 356 (1987); Foster v.
Commonwealth, 8 Va. App. 167, 173, 380
S.E.2d 12, 15 (1989). . . . If [an]
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interrogation continues without the presence
of an attorney, the defendant's statement is
inadmissible 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. See Edwards, [451
U.S. at 482]; Miranda, [384 U.S. at 475].
See also Colorado v. Connelly, [479 U.S.
157, 168] (1986); Mills v. Commonwealth, 14
Va. App. 459, 468, 418 S.E.2d 718, 722-23
(1992).
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]; McNeil v. Wisconsin, [501 U.S.
171, 176, 178] (1991); Michigan v. Harvey,
[494 U.S. 344, 350] (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] (1990); Arizona v.
Roberson, [486 U.S. 675, 683] (1988);
Edwards, [451 U.S. at 484-85]; 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]; 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
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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).
Whether the Edwards rule renders a statement
inadmissible is determined by a three-part
inquiry. Cf. Smith v. Illinois, [469 U.S.
91, 95] (1984). First, the trial court
"must determine whether the accused actually
invoked his right to counsel" and whether
the defendant remained in continuous custody
from the time he or she invoked this right
to the time of the statement. Id.; see
Tipton, 18 Va. App. at 834, 447 S.E.2d at
540. Second, if the accused has invoked his
or her right to counsel and has remained in
continuous custody, the statement is
inadmissible unless the trial court finds
that the statement was made at a meeting
with the police that was initiated by the
defendant or attended by his lawyer. See
Smith, [469 U.S. at 96] (stating that
statement is admissible if made at a
defendant-initiated meeting); Minnick, [498
U.S. at 153] (stating that police "may not
reinitiate interrogation without counsel
present"). Third, if the first two parts of
the inquiry are met, the trial court may
admit the statement if it determines that
the defendant thereafter "knowingly and
intelligently waived the right he had
invoked." Smith, [469 U.S. at 96].
Quinn, 25 Va. App. at 710-12, 492 S.E.2d at 474-75.
Thus, these "'safeguards come into play whenever a person in
custody is subjected'" to an interrogation. Jenkins v.
Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 365 (1992)
(quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
"The term 'interrogation' means either express questioning or its
functional equivalent." Watts v. Commonwealth, 38 Va. App. 206,
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214, 562 S.E.2d 699, 703 (2002). "The 'functional equivalent' of
an interrogation is 'any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.'" Id.(quoting Innis, 446 U.S. at 301). However, "[i]f a suspect's
statement was not foreseeable, then it is volunteered," and such
"'[v]olunteered statements . . . are not barred by the Fifth
Amendment and their admissibility is not affected by [Miranda].'"
Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841
(1988) (quoting Miranda, 384 U.S. at 478) (alteration in
original). Accordingly, we have interpreted the Innis standard
"as requiring a determination whether an objective observer would
view an officer's words or actions as designed to elicit an
incriminating response." Id.Here, there is no dispute that Officer England did not
engage in any express questioning of Davis. Rather, the issue is
whether his discussion with Davis, concerning the statements
allegedly made by Carter, amounted to a "functional equivalent"
of an interrogation, or whether Davis' statement was
"volunteered" and reflected his "knowing and intelligent" waiver
of his right to counsel. We find that the trial court properly
determined that Officer England's conduct was the functional
equivalent of an interrogation and that, therefore, Davis'
statement was not "volunteered."
Officer England acknowledged that he knew telling a suspect
that someone, generally a co-suspect or codefendant, has
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implicated him or her as the perpetrator of the crime is an
"effective technique" "reasonably likely to elicit a response"
from the suspect. Thus, as an experienced police officer, there
can be no question that Officer England "should" have known that
his actions were reasonably likely to elicit an incriminating
response from Davis. Nor can there be any question that an
objective observer would have viewed his conduct as "likely to
elicit an incriminating response." Id. at 16, 371 S.E.2d at 841.
Indeed, England's statements to Davis could hardly be equated to
those made by police in the cases relied upon by the
Commonwealth. See Innis, 446 U.S. at 303 (holding that a brief
conversation between police officers which amounted to "no more
than a few offhand remarks" about the missing weapon was not the
functional equivalent of interrogation); Gates v. Commonwealth,
30 Va. App. 352, 356, 516 S.E.2d 731, 732 (1999) (holding that
reading a warrant to a suspect in an interrogation room was not
the functional equivalent of interrogation as the conduct
amounted merely to "'words or actions by the police which are
normally attendant to arrest and custody'" (quoting Wright v.
Commonwealth, 2 Va. App. 743, 746, 348 S.E.2d 9, 12 (1986))); and
Blain, 7 Va. App. at 16, 371 S.E.2d at 841-42 (holding that a
conversation between police and the suspect was calculated
specifically to produce physical evidence of the crime and was,
therefore, not the functional equivalent of interrogation).
Moreover, the fact that England claimed he did not intend to
elicit such a response is of no consequence. Neither the Innis
standard, nor our interpretation of the standard as set forth in
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Blain, requires a showing of subjective intent on the part of the
officer. Indeed, the United States Supreme Court in Innis
specifically fashioned the standard "upon the perceptions of the
suspect, rather than the intent of the police," in order to
reflect the notion that "Miranda safeguards were designed to vest
a suspect in custody with an added measure of protection against
coercive police tactics, without regard to objective proof of the
underlying intent of police." Innis, 446 U.S. at 302.
Accordingly, we find no error in the trial court's
determination that Officer England's conduct amounted to the
functional equivalent of an interrogation and that, therefore,
Davis' statement was not volunteered. As the trial court made an
express factual determination, not disputed on appeal, that Davis
remained in custody at all times relevant, that he properly
invoked his right to counsel, and that no counsel was present
during the conversation at issue, we further find no error on the
part of the trial court in granting Davis' motion to suppress his
statement. Thus, we affirm the trial court's ruling.
Affirmed.
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