Jason Merritt Overbey v. Commonwealth of Virginia , 65 Va. App. 636 ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
PUBLISHED
Argued by teleconference
JASON MERRITT OVERBEY
OPINION BY
v. Record No. 1470-14-2 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 15, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Pamela S. Baskervill, Judge Designate
Reed Amos (Amos & Amos, PLLC, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Jason Merritt Overbey (“appellant”) appeals the trial court’s denial of his motion to
suppress statements made to law enforcement and the derivative evidence from those statements,
based on alleged violations of the Fifth, Sixth, and Fourteenth Amendments of the Constitution
of the United States and the Constitution of Virginia, Article I, Sections 8 and 11. We find no
error in the trial court’s ruling and therefore affirm appellant’s convictions.
I. Background
Appellant was arrested on two counts each of first-degree murder and use of a firearm in
the commission of a felony on May 22, 2011, after Kenneth Moore, Jr. and Robert Mann were
found shot and killed on the Moore family farm. Kenneth Moore, Sr. was appellant’s employer
at the time. Appellant was indicted for these offenses on February 14, 2012. On April 5, 2012,
appellant filed a motion to suppress certain statements he made to police based upon alleged
violations by the police of appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments.
On May 22, 2011, Deputy McDonald located appellant and informed him that he was not
under arrest but that “he was being detained for a situation that happened in Powhatan.”
Appellant was then handcuffed and seated in Deputy McDonald’s patrol car. Deputy McDonald
testified that as he walked appellant to his vehicle, appellant said that he did not want to make
any statements, however appellant then continued talking. Deputy McDonald and appellant were
seated in the patrol vehicle when Detective Tackett arrived and asked to speak with appellant.
At that time, appellant stated “I don’t have anything to say without a lawyer.” Detective Tackett
testified that he then walked away and Deputy McDonald testified that as soon as Detective
Tackett walked away, appellant “began to cry and stated they got me for murder, they got me for
murder.” No other interaction occurred between appellant and law enforcement at that time.
Appellant was eventually transported to the Powhatan Correctional Center by Corporal
Smith. According to Corporal Smith’s testimony, as he dropped appellant off at the center, he
wished appellant “good luck.” Appellant then responded, “Good luck. You know what the ‘F’ I
did.” Appellant then asked Corporal Smith why the police were obtaining a search warrant for
the single-family residence where he was apprehended. Corporal Smith responded, “to look for
evidence and maybe a gun.” Appellant then stated “you will never find that.”
On May 23, 2011, Detective Wentworth transferred appellant from the Powhatan
Correctional Center to the Powhatan Sheriff’s Department in order to interview him along with
Lieutenant Wolfe. As he was not involved in the events of the previous evening, Detective
Wentworth had apparently been informed that “there were some questions whether [appellant]
actually requested a lawyer and was actually charged officially,” so “[Detective Wentworth] was
told to transport [appellant] and record any utterances that he might have made.” To that end,
Detective Wentworth transported appellant in a patrol car with a built-in recording device and
also brought a back-up recording device in his pocket. An audio recording of Detective
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Wentworth’s conversation with appellant was introduced into evidence at the hearing on
appellant’s motion to suppress. Detective Wentworth stated that he introduced himself to
appellant and asked him his name. Appellant mumbled things during the ride, and Detective
Wentworth asked him to speak up as he could not understand him. Detective Wentworth asked
appellant some other benign questions, and appellant “rambled on about working for [Moore].”
Detective Wentworth then said that while he didn’t know Moore, “he could be hard to work for
from what [he had] heard.” Appellant then stated several unsavory things about Moore’s
character and behavior.1 At some point during the ride, appellant complained about having a
headache and Detective Wentworth said that “it might benefit [appellant] to talk to somebody
and tell the truth. The truth matters.” Detective Wentworth also testified that at some point,
appellant stated that he was “screwed” and would never get out of this. Finally, Detective
Wentworth said to appellant as they exited the vehicle “I’m really concerned about the firearm, if
it’s in a safe manner.”
Lieutenant Wolfe testified that on the morning of May 23, 2011, he contacted the
Powhatan Commonwealth’s Attorney’s office to determine whether appellant properly requested
an attorney or whether he could interrogate appellant. Lieutenant Wolfe testified that he was
informed that he was legally permitted to speak to appellant. Prior to interrogating him,
Lieutenant Wolfe testified that he advised appellant of his Miranda rights and presented
appellant with a waiver form. This was apparently the first time that appellant was Mirandized.
Lieutenant Wolfe stated that he read the form to appellant and told him that the form
says . . . that you understand what your rights are. It’s not saying
that you’re going to talk to me or anything like that. So I just need
to see if you could sign right here saying that you understand I
1
As appellant’s statements to Detective Wentworth were not ultimately admitted at trial
and his unsavory comments regarding one of the victims were unsubstantiated, we see no need to
detail them here.
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have advised you. And that that is all that that means. Do you
understand that? So you or [sic] would you sign that saying that
you understand that we are under agreement on that.
Lieutenant Wolfe did not read the part of the form that said appellant waived his rights by
signing the form. Lieutenant Wolfe then removed appellant’s handcuffs, and appellant
apparently mumbled something about not being able to afford a lawyer anyway and signed the
waiver form.
During the subsequent questioning, appellant made several statements to Lieutenant
Wolfe, which were eventually admitted at appellant’s trial. Lieutenant Wolfe testified that
appellant stated, “I ain’t getting out of this s--- anyway, man. God---- mother------.” Appellant
admitted to being at the Moore family farm on May 22, 2011, with both of the victims and
recounted that Moore yelled at him and threatened to “kick [appellant’s] . . . ass,” which angered
appellant. When Lieutenant Wolfe outlined his theory of the case to appellant based on his
review of the scene and relevant evidence, which, in short, had appellant shooting both victims
from behind, appellant told Lieutenant Wolfe, “That’s what happened.” Appellant also told
Lieutenant Wolfe that he used a 20-gauge shotgun, which he later placed in the woods near his
father’s house. Lieutenant Wolfe admitted that he alluded to the unrecovered firearm during the
interrogation and that he did so not just to incriminate appellant, but “for the safety of the other
people that are out on the street or wherever the weapon may be . . . .” Eventually, appellant
agreed to lead the authorities to the shotgun and Lieutenant Wolfe testified that the authorities
would not have found the shotgun without appellant’s cooperation.
Appellant did not challenge the admissibility of his statements to Deputy McDonald and
Corporal Smith in his motion to suppress, nor does he challenge them on appeal. Appellant
admits that those statements were spontaneous and not in response to police questioning.
Appellant does, however, challenge the admission of statements he made the following day to
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Detective Wentworth and Lieutenant Wolfe. Though the trial court denied appellant’s motion to
suppress statements made to both Detective Wentworth and Lieutenant Wolfe, because the
statements appellant made to Detective Wentworth in the car on May 23, 2011, were not
admitted at appellant’s trial, we will not consider their admissibility.
Appellant argued in his motion to suppress that his Fifth Amendment rights were
triggered when he was handcuffed, placed in Deputy McDonald’s vehicle, and denied the right to
leave at his discretion. From appellant’s perspective, while Deputy McDonald told appellant that
he was being detained, appellant was in fact in custody, at which time he made a clear,
unequivocal request for counsel. Appellant argued that he did not subsequently reinitiate
conversation with law enforcement. Notwithstanding the signed waiver form, appellant further
argued that he did not knowingly or intelligently waive his rights. Finally, appellant contended
that he was entitled to an attorney under the Sixth Amendment following the issuance of arrest
warrants, his appearance before the magistrate, and the magistrate’s ruling on bond.
At the hearing on the motion to suppress, the Commonwealth argued that appellant did
not properly invoke his right to an attorney under the Fifth Amendment. The Commonwealth
asserted that appellant’s Fifth Amendment right to counsel had not attached at the point at which
he told Detective Tackett that he wished to speak only with an attorney present as appellant was
not subjected to custodial interrogation at that time. Further, the Commonwealth argued that
appellant initiated the conversation with Detective Wentworth during the trip from the Powhatan
Correctional Center to the Powhatan Sheriff’s Office the following day. Finally, the
Commonwealth argued that appellant waived both his Fifth and Sixth Amendment rights during
his interrogation with Lieutenant Wolfe.2 Alternatively, the Commonwealth argued that the trial
2
Though appellant’s alleged waivers of his Fifth and Sixth Amendment rights are distinct
issues, which we will address separately, the Commonwealth blended them together in argument
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court should permit introduction of the firearm into evidence because the public safety exception
to Miranda permitted the officers to question appellant about the firearm’s location.
The trial court denied appellant’s motion to suppress, finding that though appellant
properly asserted his right to counsel when he spoke to Detective Tackett on the day of his arrest,
that appellant subsequently reinitiated contact with the police.3 Additionally, the trial court
found that appellant knowingly and willingly waived both his Fifth and Sixth Amendment rights.
Finally, the trial court concluded that the questions specifically concerning the firearm met the
public safety exception to Miranda.
At appellant’s trial, Deputy McDonald, Detective Tackett, Corporal Smith, and
Lieutenant Wolfe all testified. At the conclusion of the trial, the jury found appellant guilty on
all charges. On August 4, 2014, the trial court sentenced appellant to life imprisonment on both
charges of first-degree murder, three years’ imprisonment for one count of use of a firearm in the
commission of a felony, and five years’ imprisonment on the second count of use of a firearm in
the commission of a felony. This appeal followed.
II. Analysis
Appellant contends that the trial court erred when it denied his motion to suppress the
statements he made to Detective Wentworth and Lieutenant Wolfe on May 23, 2011, as well as
the physical evidence (the firearm) that was discovered as a result of those statements to the
authorities. Appellant argues that these statements and the firearm should have been suppressed
before the trial court. The Commonwealth relied upon the Miranda waiver form signed by
appellant and his willingness to talk to Lieutenant Wolfe as evidence that he waived any
constitutional right to counsel that may have attached at that point.
3
In finding that appellant reinitiated contact with law enforcement, the trial court did not
specify which officer (Corporal Smith or Detective Wentworth) or which conversation (the May
22, 2011 drive to the correctional center or the May 23, 2011 drive from the correctional facility
to the sheriff’s department) it relied upon.
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because the authorities violated both his Fifth and Sixth Amendment right to counsel by
subjecting him to interrogation without the benefit of counsel present.
“On appeal from a trial court’s denial of a motion to suppress, the burden is on the
appellant to show that the trial court’s decision constituted reversible error.” Quinn v.
Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997). “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.” Giles v. Commonwealth, 28
Va. App. 527, 532, 507 S.E.2d 102, 105 (1998). “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, 25 Va. App. at 713, 492 S.E.2d at 476.
A. FIFTH AMENDMENT RIGHT TO COUNSEL
“An accused has a right under the Fifth and Fourteenth Amendments to have counsel
present during a custodial interrogation.” Correll v. Commonwealth, 232 Va. 454, 462, 352
S.E.2d 352, 356 (1987) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981) (additional citation
omitted)). This rule “provides a ‘relatively rigid requirement’ that police and prosecutors must
observe.” Hines v. Commonwealth, 19 Va. App. 218, 221, 450 S.E.2d 403, 404 (1994). It
requires, when invoked, that all interrogation cease. Edwards, 451 U.S. at 484-85 (“[A]n
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.”).
When an accused has invoked his right to counsel, “subsequent waiver of that right is not
sufficient to make admissible any incriminating statements thereafter obtained, even if
investigators have re-Mirandized the accused, unless the statements are initiated by the defendant
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and shown to be based on a knowing, intelligent, and voluntary waiver.” Giles, 28 Va. App. at
531, 507 S.E.2d at 105 (citing Edwards, 451 U.S. 484-87; Arizona v. Roberson, 486 U.S. 675,
678-82 (1988)). “Only if the accused initiates further ‘communication, exchanges, or
conversations with the police,’ and only if those communications result in the accused changing
his or her mind and freely and voluntarily waiving the right to counsel, may the police resume
interrogation without violating the Edwards rule.” Id. at 532, 507 S.E.2d at 105 (quoting
Roberson, 486 U.S. at 682).
We evaluate the admissibility of a statement under the Edwards rule using a three-part
inquiry.
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 discussions or meetings with the
police. Third, if the accused did initiate further discussions or
conversations with police, the trial court must then ascertain
whether the accused knowingly and intelligently waived the
previously invoked right to counsel.
Id.
Because the Commonwealth concedes that appellant properly invoked his right to
counsel, we need not address the first element of the Edwards inquiry.4 Instead, we first consider
de novo whether appellant reinitiated conversation with the authorities. See Rashad v.
Commonwealth, 50 Va. App. 528, 536, 651 S.E.2d 407, 411 (2007).5
4
Although we are not obligated to accept the Commonwealth’s concession of this mixed
issue of law and fact, see Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584
(2005); Copeland v. Commonwealth, 52 Va. App. 529, 531, 664 S.E.2d 528, 529 (2008), we
agree, based on our review of the record, that appellant properly invoked his right to counsel.
5
In Rashad, the Court noted that
Since appellant [did] not contest the accuracy of the recorded
dialogue [between appellant and law enforcement], [the Court’s]
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As the trial court concluded below, appellant asserted his right to counsel when he
informed Detective Tackett that he had nothing to say without a lawyer. Aside from his initial
request to speak with appellant, Detective Tackett said nothing to appellant, and immediately
departed after appellant invoked his right to counsel. Thereafter, Corporal Smith transported
appellant to the correctional facility, where upon arrival, appellant initiated conversation with the
officer. As appellant exited Corporal Smith’s police vehicle, Corporal Smith told appellant,
“good luck.” Appellant responded, “Good luck? You know what the ‘F’ I did.” Appellant also
asked Corporal Smith why the police were “doing a search warrant.” Corporal Smith responded
by informing appellant that the police were looking for evidence and possibly a firearm.
Appellant told Corporal Smith that they “would never find that.”
While not all statements initiate a conversation under Edwards, such as those that
“relat[e] to routine incidents of the custodial relationship,” an accused’s statements that “evince[]
a willingness and a desire for a generalized discussion about the investigation” do. Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983) (5-4 decision). Thus, the Court in Bradshaw held that
the defendant reinitiated conversation with the authorities when he asked police what was going
consideration of the trial court’s denial of appellant’s motion to
suppress [was] restricted to a de novo review of the legal issue of
whether appellant’s words, taken in context, were sufficient to
indicate whether appellant initiated further dialogue with the
officers.
50 Va. App. at 536, 651 S.E.2d at 411 (citing Medley v. Commonwealth, 44 Va. App. 19, 30,
602 S.E.2d 411, 416 (2004) (en banc)). But see Correll, 232 Va. at 463, 352 S.E.2d at 357 (“The
trial court made a finding of fact that [the appellant] initiated the discussions which led to his
confession. This finding is amply supported by the evidence, and we will not disturb it.”).
Because appellant in the present case, like Rashad, does not contest the factual recitation of his
statements to Corporal Smith, and in fact concedes that his statements were “spontaneous and
not in response to police questioning,” we apply a de novo standard of review to the legal
question of whether the undisputed statements appellant made to Corporal Smith constituted a
reinitiation under Edwards.
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to happen to him next. Id. at 1046; see also Correll, 232 Va. at 463, 352 S.E.2d at 357 (holding
that the accused’s “statement that he wanted to explain the results of his polygraph test was
clearly more than a statement arising from the incidents of the custodial relationship”); Giles, 28
Va. App. at 535, 507 S.E.2d at 106 (finding that the accused initiated conversation with the
authorities when he stated “he was confused, that he did not understand, and then expressed
surprise that he was being charged with robbery”).
Like Bradshaw’s question to police, appellant’s inquiry to Corporal Smith – questioning
why the police were “doing a search warrant” – evinced “a willingness and a desire for a
generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46.6 Accordingly,
we hold that the trial court correctly determined that appellant initiated a conversation with
Corporal Smith following his earlier request for counsel.
But even if a conversation taking place after the accused has
expressed his desire to deal with the police only through counsel,”
is initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent
events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation.
Id. at 1044. We therefore next consider
whether a valid waiver of the right to counsel and the right to
silence had occurred, that is, whether the purported waiver was
knowing and intelligent and found to be so under the totality of the
circumstances, including the necessary fact that the accused, not
the police, reopened the dialogue with the authorities.
Id. at 1045 (quoting Edwards, 451 U.S. at 486 n.9) (emphasis added)).
6
Though Bradshaw was a plurality opinion, we note that appellant’s questions to
Corporal Smith would be considered “initiation” of conversation sufficient to satisfy Edwards
under not only the plurality opinion (requiring a defendant to “evince[] a willingness and a desire
for a generalized discussion about the investigation,” 462 U.S. at 1045-46), but also Justice
Powell’s concurrence (suggesting a broader standard more deferential to the trial court, id. at
1051 (Powell, J., concurring)), and Justice Marshall’s dissent (advocating a standard where an
accused must “demonstrate a desire to discuss the subject matter of the criminal investigation” in
order to “initiate” contact under Edwards, id. at 1055 (Marshall, J., dissenting)).
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“[W]hether a waiver of Miranda rights was made knowingly and intelligently is a
question of fact, and the trial court’s resolution of that question is entitled on appeal to a
presumption of correctness.” Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160,
163 (1992).
[The trial court] evaluates the credibility of the witnesses, resolves
any conflicts in the testimony, and weighs the evidence as a whole.
The court must decide whether the defendant knowingly and
intelligently relinquished and abandoned his rights. The court’s
determination is a question of fact based upon the totality of the
circumstances. This factual finding will not be disturbed on appeal
unless plainly wrong.
Id. (quoting Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429-30 (1985)).
The trial court determined that “in the context of [his] conversation[s] with [Lieutenant]
Wolfe [and Detective Wentworth],” appellant entered “a valid waiver, knowingly and freely
made.” In making this determination, the trial court relied upon, among other things, that
appellant signed an express waiver-of-rights form at the beginning of his interview with
Lieutenant Wolfe.
When considering whether an accused knowingly and intelligently waived his or her
previously invoked right to counsel, we look to “the totality of the circumstances, including his
background and experience and the conduct of the police.” Giles, 28 Va. App. at 536, 507
S.E.2d at 107 (quoting Correll, 232 Va. at 464, 352 S.E.2d at 357). In this case, no evidence
suggests that the officers failed to honor appellant’s request for counsel. As Detective Tackett
testified during the hearing on appellant’s motion to suppress, he immediately ended his
conversation with appellant once appellant indicated that he had nothing to say without a lawyer.
Likewise, Corporal Smith honored appellant’s request for counsel while transporting appellant to
the Powhatan Correctional facility. As appellant conceded in his motion to suppress, the
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statements he made to Corporal Smith were “spontaneous and not in response to police
questioning.”
Though we note that appellant was not Mirandized prior to his interactions with
Detective Tackett and Corporal Smith, he evinced knowledge of his rights by preemptively
invoking his right to counsel. After that point, the officers ceased any questioning until appellant
reinitiated conversation with Corporal Smith. Appellant’s counsel suggests that there is or
should be some temporal limitation on when law enforcement may conduct further questioning
of a suspect after he reinitiates conversation where he previously invoked his right to counsel.
We find no support in the case law for such a rule and decline to impose one now. Once
appellant reinitiated contact with Corporal Smith on May 22, 2011, appellant provided law
enforcement with the requisite authority to communicate with appellant, so long as that
communication was preceded by or simultaneous with appellant knowingly and intelligently
waiving his Miranda rights. For purposes of the analysis in this particular case, it was of no
consequence that appellant’s waiver and the officer-initiated interrogation did not occur until the
day after appellant reinitiated contact with Corporal Smith.
We agree with the trial court that appellant knowingly and intelligently waived his
Miranda rights prior to the interrogation which resulted in recovery of the firearm. Lieutenant
Wolfe read appellant his Miranda rights upon his arrival at the sheriff’s department, and
appellant signed an express waiver form prior to making any of the statements to which he
objects. Appellant’s express waiver is not undercut by the fact that Lieutenant Wolfe admitted
that he did not read the portion of the form that indicated appellant waived his rights aloud, as he
did read aloud the rest of the form. As the Commonwealth noted below, appellant “had on a
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number of prior occasions dealt with the police and received Miranda warnings,”7 Correll, 232
Va. at 464, 352 S.E.2d at 358, as appellant had been previously charged with misdemeanor
marijuana offenses. The record indicates that Lieutenant Wolfe advised appellant of and that
appellant understood his rights. We find that appellant was capable of effecting a valid waiver
and knowingly and freely did so.
Because appellant reinitiated conversation with Corporal Smith and voluntarily waived
his right to counsel, “[t]he protections provided by Edwards disappeared.” Cross v. Texas, 144
S.W.3d 521, 529 (Tex. Crim. App. 2004). Accordingly, appellant’s statements to Lieutenant
Wolfe on May 23, 2011, were not the result of police-initiated reinterrogation conducted in
violation of Edwards. Following appellant’s reinitiation of conversation concerning the
investigation and subsequent waiver, the authorities were permitted to commence further
conversations with appellant - unless appellant reinvoked his right to counsel.
We therefore conclude that the trial court did not err in denying appellant’s motion to
suppress to the extent it alleged a violation of his Fifth Amendment right to counsel.
B. SIXTH AMENDMENT RIGHT TO COUNSEL
Appellant also alleges that his statements to Detective Wentworth and Lieutenant Wolfe
and the evidence derived therefrom should be suppressed under the Sixth Amendment.
Unlike the right to counsel under the Fifth Amendment, which arises when invoked
during custodial interrogation, the right to counsel under the Sixth Amendment arises when
adversarial proceedings commence. “The Sixth Amendment right to counsel is triggered ‘at or
after the time that judicial proceedings have been initiated . . . whether by way of formal charge,
7
This prior exposure to criminal proceedings also undermines appellant’s claim that his
waiver was not knowingly and intelligently given because of his low IQ of 78. See Correll, 232
Va. at 464, 352 S.E.2d at 358 (finding the defendant freely and knowingly waived his right to
counsel notwithstanding his IQ of 68).
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preliminary hearing, indictment, information, or arraignment.’” Fellers v. United States, 540
U.S. 519, 523 (2004) (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)). As the Supreme
Court has explained,
Th[is] rule is not “mere formalism,” but a recognition of the point
at which “the government has committed itself to prosecute,” “the
adverse positions of government and defendant have solidified,”
and the accused “finds himself faced with the prosecutorial forces
of organized society, and immersed in the intricacies of substantive
and procedural criminal law.”
Rothergy v. Gillespie County, 554 U.S. 191, 198 (2008) (quoting Kirby v. Illinois, 406 U.S. 682,
689 (1972) (plurality opinion)).
According to appellant, the “prosecutorial process” had commenced by the time of his
interactions with Detective Wentworth and Lieutenant Wolfe, as he
had been formally arrested for the shootings, had been officially
served by law enforcement personnel with four felony warrants
charging him specifically with the crimes of first-degree murder
with the use of a firearm, had appeared before a magistrate to
determine admission to bail, and had spent the night in the county
jail.
Assuming that appellant’s appearance before the magistrate to determine admission to jail
marked the commencement of adversarial proceedings, see Rothergy, 554 U.S. at 199 (stating
that “the right to counsel attaches at the initial appearance before a judicial officer”), we
nevertheless affirm the trial court’s denial of appellant’s motion to suppress.
Citing Michigan v. Jackson, 475 U.S. 625, 633, 636 (1986), appellant contends that
“[o]nce the [Sixth Amendment] right attaches, law enforcement is required to deal with a
defendant through counsel, rather than directly, even if the defendant has waived his Fifth
Amendment rights.” Not so. The Supreme Court has explained:
The fact that petitioner’s Sixth Amendment right came into
existence with his indictment, i.e., that he had such a right at the
time of his questioning, does not distinguish him from the
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preindictment interrogatee whose right to counsel is in existence
and available for his exercise while he is questioned. Had
petitioner indicated he wanted the assistance of counsel, the
authorities’ interview with him would have stopped, and further
questioning would have been forbidden (unless petitioner called
for such a meeting). This was our holding in Michigan v. Jackson,
supra, which applied Edwards to the Sixth Amendment context.
We observe that the analysis in Jackson is rendered wholly
unnecessary if petitioner’s position is correct: under petitioner’s
theory, the officers in Jackson would have been completely barred
from approaching the accused in that case unless he called for
them. Our decision in Jackson, however, turned on the fact that
the accused “ha[d] asked for the help of a lawyer” in dealing with
the police.
Patterson v. Illinois, 487 U.S. 285, 290-91 (1988).
Appellant, of course, contends that he made known to the authorities his desire to have
the assistance of counsel on May 22, 2011, when he informed Detective Tackett that he had
nothing to say without a lawyer. But that request for counsel preceded commencement of
adversarial proceedings against appellant, even under appellant’s reasoning, because appellant
was merely under arrest and had not yet been served “felony warrants” or taken “before [the]
magistrate to determine admission to jail.” See United States v. Gouveia, 467 U.S. 180, 190
(1984) (“[W]e have never held that the right to counsel attaches at the time of arrest.”); see also
Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 541 (1994) (“Arrest is not a
‘formal charge’ that constitutes the initiation of adversarial proceedings.”). In other words, in
response to custodial interrogation, appellant asserted his Fifth Amendment right to counsel,
which does not “create a Sixth Amendment right.” Id. (“Although [appellant] properly asserted
his Fifth Amendment right to counsel, one ‘cannot create a Sixth Amendment right by asserting
that he is exercising his Fifth Amendment right.’” (quoting Lafon v. Commonwealth, 17
Va. App. 411, 424, 438 S.E.2d 279, 287 (1993))). Because appellant at “no time [thereafter]
sought to exercise his [Sixth Amendment] right to have counsel present,” the Sixth Amendment
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did not bar the authorities from initiating conversation with appellant outside the presence of
counsel. Patterson, 487 U.S. at 290.
Moreover, as the trial court concluded below, appellant waived his right to counsel under
the Sixth Amendment when he “reinitiated contact with the police indicating a desire to
communicate with the police, and thereafter executed a signed waiver of his rights under
Miranda in a knowing, voluntary and intelligent manner.” As the Supreme Court has explained:
As a general matter . . . an accused who is admonished with the
warnings prescribed by this Court in Miranda, 384 U.S., at 479,
has been sufficiently apprised of the nature of his Sixth
Amendment rights, and of the consequences of abandoning those
rights, so that his waiver on this basis will be considered a
knowing and intelligent one.
Id. at 296.
For the foregoing reasons, we find no error below, and we affirm the trial court’s decision
to deny appellant’s motion to suppress.
Affirmed.
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