Commonwealth v. Michael Anthony Morris ( 2002 )

THE COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0344-02-1 JUDGE ROBERT J. HUMPHREYS
JULY 15, 2002
MICHAEL ANTHONY MORRIS
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
Patrick Kelley (Richard E. Hill, Jr.; David
Holland's Law Group, L.L.C., on brief), for
appellee.
The Commonwealth of Virginia appeals a ruling of the trial
court suppressing evidence pertaining to the indictments of
Michael Anthony Morris for six counts of rape and one count of
taking indecent liberties with a child by a person in a
supervisory or custodial relationship. Specifically, the
Commonwealth contends the trial court erred in suppressing Morris'
voluntary statements to police. Morris noted a cross-appeal
pertaining to the same issue. For the reasons that follow, we
reverse and remand.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On October 4, 2001, Morris contacted Detective William
Lawson, with the Williamsburg Police Department, and told him "he
wanted to turn himself in in [sic] Richmond," for charges that had
been filed against him in Williamsburg. Accordingly, Morris was
served with arrest warrants, arrested by Richmond police, and
taken before a Richmond magistrate. Shortly thereafter, Morris
was released into the custody of Detective Lawson and Lieutenant
Smith to be transported to Williamsburg.
During the trip, Detective Lawson advised Morris of his
Miranda rights. Morris responded "I think I need to talk to my
lawyer." Accordingly, Detective Lawson and Lieutenant Smith
immediately terminated their conversation with Morris.
A few moments later, the officers' Deputy Chief contacted them on
Smith's car phone, which was on speaker mode, and stated that they
were considering bringing an additional charge against Morris.
Lieutenant Smith then informed the Deputy Chief that Morris said
he wanted to talk with a lawyer. Morris overheard the entire
conversation. When the call ended, Morris began asking the
officers about the additional charge. They told him they did not
know what it was.
When the three men arrived at the Williamsburg police
department, the officers placed Morris in an interrogation room so
that Detective Lawson could complete Morris' Miranda form, as well
as some additional paperwork, instead of taking Morris directly to
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the jail. Detective Lawson testified that he could have completed
the paperwork at the jail, but placed Morris in the interrogation
room so that he could leave him alone while he was working on the
paperwork, but still monitor him via the video surveillance system
in the room. 1 He claimed that his Deputy Chief was a "stickler"
for paperwork and "like[d] to have those things in writing" "for
[their] case files." 2
While Lieutenant Smith was in his office working, Detective
Lawson entered the interview room and explained the Miranda waiver
form to Morris, telling him that he had "already verbally
explained to him his Miranda rights traveling back from Richmond
and this form – [he] wanted to complete this form in order to
document [his] paperwork." Detective Lawson then read the five
statements at the top of the form to Morris, which consisted of
the standard Miranda warnings, including the statement, "You have
the right to talk to a Lawyer and have him present with you while
you are being questioned." Morris initialed the five statements,
and stated, "Well, what if I want to talk now?" Detective Lawson
1
The evidence presented to the trial court established that
the recording equipment linked to the surveillance system, which
was used to record Morris' subsequent statement, was not
activated at this time.
2
In its oral argument, the Commonwealth conceded that there
was no legal requirement that Morris execute the police
department's Miranda form or any of the additional unidentified
"paperwork."
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asked Morris the last two questions on the form: "1. Do you
understand each of these rights I have explained to you?
2. Having these rights in mind, do you wish to talk to us now?"
Morris initialed "Yes," in response to each question.
Detective Lawson then left the room to ask Lieutenant Smith
to sit in on the interview. Smith set the video monitoring system
to record the interview before returning to the room with
Detective Lawson.
When the two officers arrived in the room, they found that
Morris had written the word "yes" next to the statement on the
Miranda form informing him of his right to speak with a lawyer.
Neither officer was sure when Morris had made the notation. 3
Lieutenant Smith thus asked Morris to confirm that he had changed
his mind and wanted to speak to the officers without counsel.
Morris nodded in the affirmative. He then stated, "But I do like
to have an attorney. I mean I read the memorandum and it said I
can have one present." Smith agreed and informed Morris that an
attorney would advise him to "shut [his] mouth." He then offered
to "stop now and just take [Morris] to jail and serve all the
papers."
3
Although not noted in the transcript, the videotape
clearly indicates that Morris picked up a pen and made a
notation on the rights form after Detective Lawson had left the
interview room and moments before he returned with Lieutenant
Smith.
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However, Morris continued asking questions about the charges
against him. Morris asked about the details of the charges and
the sentence he would be exposed to. He asked whether the State
would be easier on him if he cooperated, and inquired as to
whether he would be sent to a maximum-security prison, expressing
his concern that "rapists" get killed in prison. Additionally,
Morris asked if his wife could be charged and stated she did not
know anything about the matter. The officers informed Morris that
they could not ask him any questions, but answered Morris'
questions. After several minutes of this conversation, Morris
acknowledged that he did not have a lawyer and stated that he did
not want one. He subsequently signed a waiver form and gave a
full confession. 4
Morris was thereafter indicted on six counts of rape and one
count of taking indecent liberties with a child by a person in a
supervisory or custodial relationship. On December 11, 2001,
Morris filed a motion to suppress his confession contending the
officers' questioning violated his constitutional rights.
4
We note that the video recording of the interview, as well
as a transcript of the video recording, although referred to
repeatedly by the prosecutor and subsequently offered as
exhibits by the defense without objection by the Commonwealth,
were not actually admitted as exhibits but "[were] made a part
of the record" after the court announced its ruling.
Accordingly, we consider both the videotape and the transcript
as part of the record on appeal.
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The trial court held a hearing on the motion on December 18,
2001. After reviewing the evidence, the trial court issued its
ruling on January 25, 2002. The court held as follows:
[t]he Court will make the following finding:
number 1, the defendant was in custody;
number 2, during the transportation from
Richmond to the City of Williamsburg he was
read his Miranda rights; during that time he
requested an attorney; all questioning
stopped; he was taken to the police
department where questioning resumed, i.e.,
the police initiated contact by asking a
series of paperwork questions, more
particularly asking him to complete the
Miranda forms in writing which led to
additional questioning.
The Court is of the opinion that that [sic]
was improper, that he was in custody, he
exercised his Miranda rights, and that he
did not initiate the additional contact
while he was – additional discussion that
took place, he was without legal counsel.
And considering the totality of the
circumstances the Court finds the Miranda
rule was violated. Accordingly, the
statement would not be admissible. The
Court will suppress the statement.
The Court will further rule that the
statement was knowingly, intelligently, and
voluntarily made; it was fully voluntary,
and accordingly could be used for
impeachment purposes if necessary. So I
grant your motion to suppress.
II. ANALYSIS
On appeal, the Commonwealth argues the trial court erred in
sustaining Morris' motion to suppress, relying upon Edwards v.
Arizona, 451 U.S. 477 (1981) and its progeny, as "the police did
not initiate a new interrogation by asking him to complete routine
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paperwork." Morris cross-appeals, contending that the police
improperly initiated interrogation after he had invoked his right
to counsel.
On review of the trial court's ruling granting a motion to
suppress, the appellate court views the evidence in the light most
favorable to the defendant, the prevailing party below, and grants
him all reasonable inferences fairly deducible from that
evidence. 5 "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." 6
As a basic premise, in compliance with Miranda v. Arizona,
384 U.S. 436 (1966), officers must inform the accused of his right
to remain silent and his right to an attorney, court appointed if
necessary, before a custodial interrogation may take place.
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. In
order for a defendant's statement to be
admissible at trial, the Commonwealth must
prove that the defendant was informed of his
Miranda right to counsel, i.e., that he has
the right to consult with a lawyer, to have
the lawyer present during interrogation and
5
Russell v. Commonwealth, 33 Va. App. 604, 535 S.E.2d 699(2000); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991).
6
Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d
102, 105 (1998) (citation omitted).
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that, if the defendant is indigent, a lawyer
will be appointed to represent him. If the
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.
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." 7
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. 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." 8
Whether the Edwards rule renders a statement
inadmissible is determined by a three-part
inquiry. First, the trial court "must
determine whether the accused actually
invoked his right to counsel" and whether
the defendant remained in continuous custody
7
Quinn v. Commonwealth, 25 Va. App. 702, 710-12, 492 S.E.2d
470, 474-75 (1997) (citing Davis v. United States, 512 U.S. 452,
458 (1994); McNeil v. Wisconsin, 501 U.S. 171, 176 (1991);
Michigan v. Harvey, 494 U.S. 344, 350 (1990)).
8
Id. (citing Edwards, 451 U.S. at 484; 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)).
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from the time he or she invoked this right
to the time of the statement. 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. 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." 9
As an initial point, the Commonwealth assumes, without
conceding, that Morris unequivocally invoked his right to counsel
when he stated "I think I need to talk to my lawyer." 10
Nevertheless, the officers treated Morris' statement as an
unequivocal request for a lawyer as they terminated further
conversation with him at that point. Further, the trial court
found that Morris' statement was intelligently, knowingly and
voluntarily made, a finding which neither party disputes. Thus,
it is only the second prong of the Edwards test at issue on
appeal.
In this regard, the trial court found that the officers'
questioning of Morris resumed after they arrived at the police
station and placed him in the interrogation room. Specifically,
9
Id. (citing Smith v. Illinois, 469 U.S. 91, 96 (1984)).
10
The Commonwealth states that they have maintained this
position throughout the proceedings. Indeed, we find that the
trial court has not rendered a ruling on this precise issue.
Accordingly, we do not address it on appeal.
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the court held that, after Morris had invoked his right to counsel
while in the car, "the police [improperly] initiated the contact
[with Morris] by asking a series of paperwork questions
. . . which led to additional questioning."
However, we have held that "'police do not impermissibly
"initiate" renewed interrogation by engaging in routine
conversations with suspects about unrelated matters.'" 11 Thus,
"'[p]olice words or actions "normally attendant to arrest and
custody" do not constitute interrogation,' although the police may
not ask questions, even during booking, 12 that are designed to
elicit incriminatory admissions."13
Here, the officers ceased any conversation with Morris as
soon as he purportedly invoked his right to counsel. However,
instead of taking him to the jail, they placed him in an
interrogation room at the police department to complete their
paperwork associated with his arrest. As part of that process,
11
Foster v. Commonwealth, 8 Va. App. 167, 174, 380 S.E.2d
12, 16 (1989) (citing Edwards, 451 U.S. at 490).
12
Moreover, to the extent that the trial court's holding
suggests that "paperwork" attendant to the booking procedure may
constitute improper questioning on the part of police, we note
that we have specifically recognized a routine booking question
exception in Virginia, "'which exempts from Miranda's coverage
questions to secure the biographical data necessary to complete
booking or pretrial services.'" Watts v. Commonwealth, 38
Va. App. 206, 215-16, 562 S.E.2d 699, 703-04 (2002) (quoting
Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)).
13
Id. (citing Wright v. Commonwealth, 2 Va. App. 743, 746,
348 S.E.2d 9, 12 (1986); South Dakota v. Neville, 459 U.S. 553,
564 n.15 (1983); Muniz, 496 U.S. at 602 n.14).
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they asked Morris to complete a Miranda waiver form that was
standard documentation their supervisor routinely expected them to
complete.
Moreover, the officers testified that Morris was placed in
the interrogation room only so that he could be monitored while
the officers were in their respective offices, or were otherwise
not in the room with him. The officers asked no questions of
Morris concerning the offenses, nor was there any evidence to
suggest that the officers' actions were designed or intended to
elicit an incriminating response from Morris. 14
Indeed, the officers re-entered the room with Morris only
after he indicated to Detective Lawson he wanted "to talk" and
initialed a written statement that he wished to talk with them.
We have held that "police legitimately may inquire whether a
suspect has changed his mind about speaking to them without an
14
Wright, 2 Va. App. at 746, 348 S.E.2d at 12 (holding
Miranda warnings unnecessary where information obtained as a
result of conduct normally attendant to arrest and custody and
noting "the total absence of any evidence that the
questioning . . . was intended or designed to produce an
incriminating response."); see also Timbers v. Commonwealth, 28
Va. App. 187, 196, 503 S.E.2d 233, 237 (1998) (holding that in
order to determine whether actions of police are "reasonably
likely to elicit an incriminating response," we must determine
"whether an objective observer would view an officer's words or
actions as designed to elicit an incriminating response.")
(citing Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d
838, 841 (1988); Rhode Island v. Innis, 446 U.S. 291 (1980)).
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attorney." 15 This was clearly the situation in the case at bar.
The record demonstrates that the "additional questioning"
concerned only whether or not Morris actually wanted a lawyer
before speaking with the officers. In fact, Morris only increased
the uncertainty of whether he invoked or waived his right to
counsel by writing "yes" by the question concerning his wish for
counsel (while Detective Lawson went to get Lieutenant Smith) and
then saying, "But I do like to have a lawyer." The ensuing police
questions were clearly asked to determine what Morris actually
wanted: counsel or no counsel. At no point did the police
interrogate Morris about the criminal charges. Instead, they
merely sought to clarify his contradictory oral and written
statements as to his desire for counsel.
Further, the record conclusively demonstrates that it was
Morris, and not the officers, who began any substantive discussion
by asking numerous questions concerning the offenses. The
officers simply provided Morris with truthful responses to his
questions, while properly reminding him that they could not ask
him any further questions if he chose to maintain his choice to
proceed with counsel. Thus, it was Morris who initiated the
additional conversation concerning the offenses by "represent[ing]
15
Foster, 8 Va. App. at 174, 380 S.E.2d at 16 (citing
Edwards, 451 U.S. at 490).
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a desire . . . to open up a more generalized discussion relating
directly or indirectly to the investigation." 16
As set forth above and contrary to the trial court's ruling,
police are not precluded from engaging in routine conversations
with suspects and/or asking questions to clarify whether a suspect
has changed his or her mind about wanting a lawyer and such
inquiries do not amount to police-initiated interrogation within
the meaning of Edwards. 17 Moreover, a suspect may render himself
subject to further interrogation if he "initiates [the] further
communication, exchanges, or conversations with the police." 18
Therefore, even in viewing the facts in the light most
favorable to the defendant, Morris, we find that the trial court
erred in holding that the officers' conduct constituted an
improper initiation of an interrogation following the exercise of
a defendant's right to counsel during questioning by police.
Accordingly, we reverse the decision of the trial court and remand
with instructions to the trial court to vacate its order
suppressing the relevant statements.
Reversed and remanded.
16
Giles, 28 Va. App. at 535, 507 S.E.2d at 106 (citing
Oregon v. Bradshaw, 462 U.S 1039, 1045 (1983)).
17
See Bunch v. Commonwealth, 225 Va. 423, 434-35, 304
S.E.2d 271, 277 (1983).
18
Edwards, 451 U.S. at 484-85.
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