Stevens v. Commonwealth ( 2012 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell and Lacy, S.JJ.
ROGER LEE STEVENS,
S/K/A ROGER LEE STEPHENS
v. Record No. 110402 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA January 13, 2012
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of
Virginia erred in affirming the trial court’s denial of the
defendant’s motion to suppress his statement to police during a
custodial interrogation because, in light of the circumstances,
the defendant’s request for a lawyer was ambiguous and,
therefore, the officers were entitled to ask further clarifying
questions.
BACKGROUND
The facts are not in dispute. Zachary Titus and Mark
Hopkinson were shot and killed in the course of a drug
transaction and robbery in Pittsylvania County. Roger Lee
Stevens was arrested in connection with these murders and taken
to a police station in Chatham, Virginia for questioning.
Officers William H. Chaney and T. L. Nicholson with the
Pittsylvania County Sheriff’s Department conducted the
interrogation. Officer Chaney advised Stevens of his right to
have counsel present during the custodial interrogation and his
right to remain silent or terminate the interrogation at any
time pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and
Stevens voluntarily waived these rights. Stevens answered the
officers’ questions for approximately two hours, during which
time he did not ask for an attorney and made no incriminating
statements.
The next morning, pursuant to the magistrate’s order,
Stevens was transported to the court building for his initial
appearance before a court not of record for purposes of advising
him of his right to bail and for appointment of counsel if
appropriate. Code §§ 19.2-158 and -159. However, the
magistrate’s order incorrectly sent Stevens to the juvenile and
domestic relations district court rather than the general
district court. Because the general district court was not in
session, Stevens was placed in a holding cell pending his
transfer back to jail.
Officer Chaney received word that Stevens wanted to talk
with Chaney again. Chaney went to the holding cell and had a
“basic conversation” with Stevens. Stevens asked if he could go
home to see his child. Chaney explained that Stevens was in
police custody for several serious crimes and could not go home.
Chaney told Stevens that later he would have Stevens brought
down to Chaney’s office, which was in the same building as the
holding cell, to talk with him some more.
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Later in the day, Officers Chaney and Nicholson had Stevens
brought to their office. The conversation was digitally
recorded and proceeded as follows:
Chaney: You wanna, you want to talk to us some more?
Stevens: Ya’ll want to talk to me or something?
Chaney: Yeah. You want to talk to us?
Stevens: Ya’ll want to talk to me? I ain’t doing nothing
[inaudible] sitting.
Chaney: Well reason we ask is cause we brought you back
over that, this morning you asked for me, and we brought
you back over here the reason I’m asking you is because
your rights still apply. You still understand your rights?
Stevens: I have the right to remain silent.
Nicholson: Yeah.
Chaney: Everything that I read you last night, do you
still understand your rights?
Stevens: Mm-hmm.
Chaney: You can have a lawyer present if you want one.
Stevens: I want, that’s what I need. I want to know
what’s, you know what I’m saying.
Chaney: You can stop answering at any time.
Stevens: That’s what I want, a lawyer, man.
Chaney: You do want a lawyer.
Stevens: I mean, that’s what I thought they brought me up
here for today.
Nicholson: Well they gonna appoint you a lawyer. I mean
you gonna get a lawyer.
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Chaney: The question is do you want a lawyer before you
talk to us again or are you willing to talk to us?
Stevens: I mean I’ll listen to ya but you already said if
I could stop if I wanted.
Chaney: Stop answering at any time you want to.
Stevens: I’ll listen to what you got to say. If you want-
if I say something-if I feel I don’t want to say no more
ya’ll done told me I can stop.
Nicholson: Yes sir.
Chaney: Stop any time you want to.
Nicholson: No problem at all with that.
Chaney: All you got to say is I don’t want to say-I don’t
want to talk to you no more. That’s all you gotta say.
Following this exchange, the officers continued to interview
Stevens for approximately two-and-a-half hours during which time
Stevens made incriminating statements.
Stevens was indicted by a multi-jurisdictional grand jury
impaneled at the Circuit Court of Halifax County for two counts
of murder, Code § 18.2-32, two counts of use of a firearm in the
commission of murder, Code § 18.2-53.1, conspiracy to commit
robbery, Code §§ 18.2-22 and 18.2-58, robbery, Code § 18.2-58,
use of a firearm in the commission of robbery, Code § 18.2-53.1,
malicious bodily injury, Code § 18.2-51, and use of a firearm in
the commission of malicious wounding, Code § 18.2-53.1.
Prior to trial, Stevens filed a motion to suppress the
incriminating statements he made to police on the grounds that
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the statements were taken in a custodial interrogation
subsequent to his request for a lawyer and therefore were taken
in violation of the Fifth, Sixth and Fourteenth Amendments to
the United States Constitution. The trial court denied Stevens’
motion finding that, under the circumstances, the statements and
questions by the police officers following Stevens’ reference to
wanting a lawyer were to clarify Stevens’ request and therefore
did not violate his constitutional rights. Stevens was found
guilty on all indictments by a Pittsylvania County jury and the
circuit court sentenced him to 160 years’ imprisonment.
A divided panel of the Court of Appeals of Virginia
reversed Stevens’ convictions and remanded the matter for a new
trial. The Court of Appeals granted the Commonwealth’s petition
for rehearing en banc, vacated the panel’s previous decision,
and affirmed Stevens’ conviction. Stevens v. Commonwealth, 57
Va. App. 566, 704 S.E.2d 585 (2011). The Court of Appeals held
that
Stevens’ statement was ambiguous because the
circumstances leading up to Stevens’ statement made it
unclear whether Stevens had requested the presence of
an attorney during custodial interrogation, or whether
he had simply expressed his desire to have an attorney
appointed to represent him at trial. Because of this
ambiguity, we conclude that the police were permitted
to ask Stevens limited questions solely for the
purpose of clarifying the statement. Accordingly, we
hold that the police did not violate Stevens’ right to
counsel under Miranda . . . .
Id. at 568-69, 704 S.E.2d at 587.
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This Court granted Stevens an appeal on the following
assignment of error:
The Court of Appeals erred when it affirmed the
trial court’s denial of the appellant’s suppression
motion holding the investigators could ask
clarifying questions of appellant as the
circumstances of his request for counsel rendered
that request ambiguous.
DISCUSSION
In this case, there is no dispute regarding the facts.
Consequently, this appeal presents a pure question of law that
is subject to de novo review. Specifically, we apply the
requisite constitutional standards to the facts of the case to
determine whether Stevens’ request for an attorney during the
custodial interrogation was sufficiently unambiguous under the
circumstances to preclude further questioning by the law
enforcement officers. Commonwealth v. Redmond, 264 Va. 321,
326-27, 568 S.E.2d 695, 697-98 (2002). See also Zektaw v.
Commonwealth, 278 Va. 127, 134-35, 677 S.E.2d 49, 53 (2009)
(when defendant does not dispute the content of his statements
to police, “appellate consideration of the circuit court’s
denial of [the defendant’s] motion to suppress is restricted to
a de novo review of the legal issue whether [his] words, taken
in context, were sufficient to invoke his right to counsel”)
(quoting Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d
579, 584 (2005)).
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The constitutional standards we apply are well-established.
An accused’s right to have counsel present during a custodial
interrogation was first recognized in Miranda, 384 U.S. at 474.
The principle is now well-established that, pursuant to the
Fifth Amendment of the United States Constitution, law
enforcement officers must inform a suspect in a custodial
interrogation of certain rights, including the right to remain
silent and to have the assistance and presence of legal counsel
during the interrogation. Commonwealth v. Hilliard, 270 Va. 42,
49, 613 S.E.2d 579, 584 (2005). If the accused expresses a
desire to have counsel present during a custodial interrogation,
law enforcement officers must cease their interrogation until
counsel is present or the accused initiates further
communication with the authorities. Midkiff v. Commonwealth,
250 Va. 262, 266, 462 S.E.2d 112, 114 (1995) (citing Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981)). See also Zektaw, 278 Va.
at 136, 677 S.E.2d at 53 (quoting Edwards).
To invoke the protections provided by Miranda and Edwards
an accused must clearly and unambiguously assert his right to
counsel. Zektaw, 278 Va. at 136, 677 S.E.2d at 53; Midkiff, 250
Va. at 266, 462 S.E.2d at 115. However, in situations where
a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in
light of the circumstances would have understood only
that the suspect might be invoking the right to
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counsel, our precedents do not require the cessation of
questioning.
Davis v. United States, 512 U.S. 452, 458 (1994). The Supreme
Court recognized that, in such situations, it would “be good
police practice for the interviewing officers to clarify whether
or not [the accused] actually wants an attorney” but the Court
did not establish a rule that officers must ask clarifying
questions. Id. at 461-62.
Finally, in Smith v. Illinois, 469 U.S. 91, 99-100 (1984),
the Supreme Court held that “an accused’s postrequest responses
to further interrogation may not be used to cast retrospective
doubt on the clarity of the initial request itself” but the case
did not address what, if any, events preceding the request could
be considered as rendering the request ambiguous or equivocal.
Stevens argues that his statement “[t]hat’s what I want, a
lawyer, man” was clear and unambiguous and, therefore, at that
moment, all further questioning by the officers had to stop. He
argues that further interpretation or clarifying questions are
justified only when the words themselves are ambiguous or
unclear. The Commonwealth responds that the single statement
should not be considered in isolation and, that taken in
context, a reasonable police officer could have been uncertain
as to whether Stevens was expressing a desire for the
appointment of counsel to represent him at trial or to be
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present during the custodial interrogation. Under these
circumstances, the Commonwealth contends, the officers did not
violate Stevens’ Miranda rights when they asked questions to
clarify Stevens’ intent.
We reject Stevens’ contention that the determination
regarding the request for an attorney during a custodial
interrogation is limited to consideration of only the words
spoken. Hilliard, 270 Va. at 50, 613 S.E.2d at 585. While
post-request responses to questioning may not be used to “cast
retrospective doubt on the clarity of the initial request
itself,” Smith, 469 U.S. at 99-100, pre-request circumstances
are relevant to determining the clarity of the request. Whether
a suspect has invoked his right to counsel during a custodial
interrogation is an objective inquiry and the invocation of the
request for counsel must be such that “a reasonable officer in
light of the circumstances” would understand the statement to be
a request to have counsel present for the interrogation. Davis,
512 U.S. at 459 (emphasis added); Zektaw, 278 Va. at 136, 677
S.E.2d at 54; Redmond, 264 Va. at 328, 568 S.E.2d at 699. This
test set out by the Supreme Court does not limit the inquiry to
the single statement requesting a lawyer as Stevens asserts, but
includes consideration of the circumstances preceding the
request. If those circumstances would lead a reasonable police
officer to conclude that Stevens’ request for a lawyer could
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have been for a reason other than a lawyer’s presence at the
custodial interrogation, the officers were entitled to proceed
as they did and ask questions to clarify Stevens’ meaning. See
Cooper v. Taylor, 103 F.3d 366, 373 (4th Cir. 1996) (Luttig, J.,
concurring) (accused’s response to officer’s question about a
desire for a lawyer was ambiguous in the context of the
immediately preceding questions and answers and especially
because of the accused’s earlier waivers). Thus, the
circumstances preceding Stevens’ request for an attorney are
relevant to the determination whether his request was clear and
unambiguous.
Stevens next asserts that “[n]othing in the circumstances
of the present case was ambiguous or equivocal” particularly
because the request for an attorney was made while the officers
were reminding Stevens of his Fifth Amendment right to an
attorney. Again, we disagree. The circumstances preceding the
moment when the officers heard Stevens say “[t]hat’s what I
want, a lawyer, man” included Stevens’ prior waiver of his
Miranda rights; two conversations during which Stevens did not
request an attorney; Stevens’ re-initiation of the second
conversation with Officer Chaney; and the officers’ knowledge
that one of the reasons Stevens was brought to the court
building was for the appointment of an attorney to represent him
in the ensuing legal proceedings, but that no attorney had been
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appointed for him by the time they met with Stevens for the
third time because the general district court was not in
session. ∗ These circumstances support a reasonable police
officer’s belief that Stevens was willing to talk with the
officers without an attorney present and that Stevens was in the
court building for the appointment of a lawyer but no lawyer had
yet been appointed. In this context, Stevens’ request for a
lawyer could be understood by a reasonable police officer to
refer to either a lawyer for purposes of the custodial
interrogation or a lawyer to represent Stevens in court. We
agree with the Court of Appeals, that under the facts of this
case, Officers Chaney and Nicholson “could have reasonably
viewed Stevens’ statement as ambiguous, and thus they were
permitted to ask Stevens clarifying questions . . . .” 57 Va.
App. at 580, 704 S.E.2d at 592.
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
∗
Stevens argued on brief and in oral argument that the
record did not support the Court of Appeals’ conclusion that the
officers knew of the “botched” proceeding to appoint Stevens an
attorney. We do not address this issue because Stevens did not
assign error to the Court of Appeals’ holding. Rule
5:17(c)(1)(i).
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