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MEDLEY v. COMMONWEALTH




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MEDLEY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Hodges

Argued at Chesapeake, Virginia

Record No. 1576-02-1

KARING BETHEL MEDLEY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.

DECEMBER 9, 2003

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY

Glen A. Tyler, Judge

William P. Robinson, Jr. (Robinson, Neeley & Anderson, on
brief),

for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Pursuant to Code ? 19.2-254 and Alford v. North Carolina, 400
U.S. 25 (1970), Karing

Bethel Medley conditionally pled guilty to the charges of
possession of cocaine with the intent to

distribute and of transporting one ounce or more of cocaine into
the Commonwealth with the intent

to distribute. On appeal, he contends the trial judge erred in
denying his motion to suppress

statements he made to the state police. Based on the trial judge’s
finding that Medley did not waive

his rights, we reverse the convictions.

I.

At the suppression hearing, State Police Officer Wade testified
that he and other officers

were assigned to monitor southbound traffic at the toll plaza of
the Chesapeake Bay Bridge in

Northampton County and to "intercept people smuggling guns
and drugs . . . from the New York

area . . . to the Tidewater area." While looking "for
violations on the vehicles and . . . for any

unusual responses or reactions [by the occupants] as they
approach[ed] the toll booth," Officer

Wade noticed the lettering on a license plate of an automobile
approaching the toll booth. Based

upon his knowledge that "certain letters are issued from
the Eastern Shore area" for Virginia license

plates, Officer Wade "assumed that this vehicle was from
across the bay." He testified that he

watched the driver approach the toll plaza where the officers
stood and noticed that the driver’s

"eyes . . . were great big and round." He testified
that these factors caused him to ask Trooper

Hawkins to check the automobile.

When Medley, the driver, stopped to pay the toll, Trooper
Hawkins told him "that his

window tint appeared to be too dark under Virginia law and
[that] it was also a violation to have any

objects hanging from the mirror that could obstruct your
view." Trooper Hawkins then directed

Medley to stop his automobile at the side of the highway. When
he asked for Medley’s driver’s

license and registration, Medley said he had no identification.
After the passenger indicated that the

automobile was hers and gave Trooper Hawkins the registration,
Trooper Hawkins walked Medley

to his vehicle and contacted the dispatcher. While Trooper
Hawkins and Medley waited for the

report concerning Medley’s driving status, Trooper Hawkins
asked Medley about his travel

destination. Medley said he and the passenger had intended to
drive to New York from Norfolk, but

they had an argument and were returning to Norfolk.

Special Agent Wendell questioned the passenger about her travel.
After talking with her,

Special Agent Wendell went to Trooper Hawkins, who was still
sitting in his vehicle with Medley,

and told him about his conversation with the passenger. Trooper
Hawkins testified that he and

Special Agent Wendell determined that the passenger’s and
Medley’s replies were inconsistent.

Officer Wade also talked to the passenger and told Trooper
Hawkins her version of their travel,

which contradicted Medley’s version.

Officer Wade testified that he explained to the passenger that
they intended to use a drug

detection dog around the outside of her automobile because of
her nervous actions and the

inconsistent statements made by her and Medley. As Officer Wade
guided the dog around the

automobile, the dog alerted near a rear door. Based upon the
alert, Officer Wade looked in the

automobile and found, behind the driver’s seat, a black
plastic bag containing a box of cereal.

Inside the box, he found "approximately 250 grams of what
[he] believed to be . . . cocaine."

Trooper Hawkins handcuffed Medley, and Special Agent Wendell
handcuffed the passenger. Over

Medley’s objection, Officer Wade testified about the following
statements the passenger made: that

Medley promised her $200 for taking him to New York, that she
noticed Medley had about $2,500

in a roll of money, that she left the automobile to go to the
bathroom in New York while Medley

was talking with some people, that she noticed the cereal box
when they were driving through

Delaware, and that Medley told her "his people gave it to
him and not to worry about it."

Officer Wade also testified that neither Medley nor the
passenger was charged with any

violations concerning the tinted window or the object on the
rearview mirror. He further testified as

follows:

Q: So this was nothing more than a pretextual stop, was it?

A: As far as I’m concerned, you’re correct. Yes, sir.

After Trooper Hawkins put handcuffs on Medley, he left Medley in
his vehicle and went to

the automobile that was being searched. Special Agent Wendell
went to Trooper Hawkins’s vehicle

and read Medley his Miranda rights. Special Agent Wendell
testified he asked Medley if he

understood those rights. Medley said he did. When Special Agent
Wendell asked Medley if he

wished to waive his rights and talk with him, Medley responded
that "he would talk to [Special

Agent Wendell], but he didn’t want to waive his rights."
Special Agent Wendell testified that the

following then occurred:

For several minutes I continued to talk to Mr. Medley

saying I read him his Miranda rights. I asked him which rights
he

wished — that he wanted to invoke, and he said he wanted all of
his

rights. I told him that I cannot talk to him because of the
third

right — you have the right to talk to a lawyer for advice
before we

ask you any questions and to have a lawyer with — excuse me –

with you during questioning; and at that time he stated, I want
all

my rights, but I still want to talk to you. I again explained to
him, I

cannot talk to you — and I overemphasized that I cannot talk to
him

at all without having his waiver of rights; and he said, I don’t
want

to waive anything on this. I want this sheet to remain the same

and this would be the sheet that I marked yes and then no — but
I

will talk to you.

Special Agent Wendell testified that he then asked Sergeant
Clark to join him and talk to

Medley.

At that particular point in time after minutes and numerous

times trying to explain about I cannot talk to him if he does
not

wish to waive them, I brought Sergeant Clark in. Sergeant Clark

and I both tried to explain over and over again to him that if
he

wishes to enact his Miranda rights, I cannot talk to him; and at
that

time Sergeant Clark also advised him of that. From that

standpoint, Sergeant Clark and I closed the door — I closed the

door myself; and Sergeant Clark advised him that if he wants to

talk to us, he’s going to have to initiate the conversation
for us to

continue to talk to him.

Sergeant Clark confirmed that after he joined Special Agent
Wendell and again explained

the Miranda rights to Medley, Medley responded that he
understood his rights and said he "did

not want to waive his rights, but . . . would talk to us."
Sergeant Clark testified that after trying

three more times, he told Medley that Medley would have to
initiate the conversation otherwise

they would not talk to him anymore. Special Agent Wendell and
Sergeant Clark then left

Medley alone in the vehicle. Special Agent Wendell joined the
other officers who were

searching the passenger’s automobile.

Trooper Hawkins testified that Special Agent Wendell told him
Medley did not give a

statement. Trooper Hawkins testified that he then returned to
his vehicle and read Miranda rights

to Medley again. He explained those events as follows:

I sat back with Mr. Medley for a little while after his

Miranda warnings were read to him. Special Agent Wendell had

read them, and I had read them again, and he wasn’t talking at
that

point when I was with him. He just said that everything — when
I

read them to him, he would say — he wouldn’t say that he

understood his rights. He wouldn’t go that far with me.

* * * * * * *

When I talked to him, he — he wouldn’t — when I asked

him the question about will you waive your rights, he would
never

say I waive my rights. He would go as far as acknowledging his

understanding; but he would not say, I waive my rights.

Trooper Hawkins testified that he then "determined, unless
[Medley] approached [him] and

wanted to talk to [him] again, [he] wasn’t going to have any
more conversation."

Special Agent Wendell testified that within a half an hour after
he began searching the

automobile, Trooper Hawkins came to him and said, "he wants
to talk to you." Special Agent

Wendell testified that the following occurred.

I then proceeded back to the vehicle and asked Mr. Medley,

Do you want to talk to me? He said, Yes, I want to talk to you.

I again explained to him, if you’re not willing to waive

your rights, I cannot talk to you. He said, I — quote and
unquote –

Mr. Medley stated that he could talk to me because she had

nothing to do with the investigation. I then explained to Mr.

Medley, I don’t want to talk to you unless you’re willing to
waive

your rights; and he said, I’ll talk to you. I just don’t
want anything

to be used against me. I’ll talk to you off record, and I told
him

that he cannot talk to me off the record because he invoked his

rights. Again, he consistently told me that he wanted to talk to
me;

and, therefore, I began talking to him.

Special Agent Wendell testified Medley responded to his
questioning and said that the passenger

knew nothing, that he was being paid $1,500 for taking "the
item" to Norfolk, that another car

was following them to Norfolk, and that he was to deliver the
item to the occupants of the other

car in Norfolk.

Medley, a convicted felon, testified that he told all the
officers he did not want to waive

his rights and denied telling them he wanted to talk to them. He
testified that when he told them

he was not making statements, he gave them his lawyer’s
business card. He said one of the

officers ripped it while talking to him. He testified that
Trooper Hawkins "kept asking

questions" and talked for thirty to forty minutes about
waiving his rights. Medley further denied

making any statements to Special Agent Wendell about going to
New York or making a delivery

to the people in a car following him.

The trial judge denied the motion to suppress, ruling as
follows:

I think he had a right to stop him, and . . . if you believe his

testimony, he didn’t make any statements. So there is nothing
to

be suppressed. If you believe the officers’ testimony, he didn’t

waive his rights; but he initiated the conversation. So I would

overrule the motion.

This appeal challenges this ruling.

II.

At trial, Medley’s attorney argued that Medley "did not
waive his Miranda rights and that

any statement attributed to him would, therefore, be
inadmissible." At trial and on appeal

Medley cited Edwards v. Arizona, 451 U.S. 477 (1981), as
authority supporting his position.

The Commonwealth contends Edwards is inapplicable because Medley
never invoked his right

to counsel.

The United States Supreme Court held as follows in Edwards:

[W]hen an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right
cannot

be established by showing only that he responded to further

police-initiated custodial interrogation even if he has been
advised

of his rights. We further hold that an 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.

451 U.S. at 484-85. "The Edwards rule does not apply unless
the prior interrogation was

custodial and during that custodial interrogation, the suspect
clearly and unequivocally invoked

his right to counsel." Commonwealth v. Gregory, 263 Va.
134, 147, 557 S.E.2d 715, 723

(2002).

The record establishes that Medley was in custody and
consistently indicated he did not

waive his rights on each occasion when the officers read Miranda
rights to him. Although

Medley testified that he gave one of the officers his lawyer’s
card, Special Agent Wendell denied

that Medley did so. The trial judge believed the officer’s
testimony.

The Commonwealth correctly notes that no officer testified that
Medley specifically

mentioned his "right to counsel." Special Agent
Wendell did testify, however, that he told

Medley he could not "talk to him because of the third right
– you have the right to talk to a

lawyer for advice before we ask you any questions and to have a
lawyer with . . . you during

questioning." Special Agent Wendell also testified that
Medley responded to that comment by

saying, "I want all my rights." Therefore, Special
Agent Wendell, who was the first officer to

read Miranda rights to Medley, was aware that Medley did not
waive his right to talk to his

attorney before being interrogated. In view of this
circumstance, Special Agent Wendell

certainly "‘would understand the statement to be a
request for an attorney.’" McDaniel v.

Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851, 853 (1999)
(citation omitted). The

record further reflects that after Trooper Hawkins and Sergeant
Clark read Miranda rights to

Medley, Special Agent Wendell returned to the vehicle and again
questioned Medley. He was

fully aware of Medley’s earlier refusal to waive his right to
an attorney, and he initiated the

interrogation with full knowledge that the other two officers
had conversed with Medley.

Because Medley never specifically mentioned "his right to
counsel," Gregory, 263 Va. at

147, 557 S.E.2d at 723, and because Medley generally indicated
he was not waiving any of his

rights, we believe the following extended excerpt from Michigan
v. Mosley, 423 U.S. 96, 100-04

(1975), guides our resolution of this issue:

Resolution of the question turns almost entirely on the
interpretation of a

single passage in the Miranda [v. Arizona, 384 U.S. 436 (1966),] opinion . . . :

"Once warnings have been given, the subsequent procedure

is clear. If the individual indicates in any manner, at any time
prior

to or during questioning, that he wishes to remain silent, the

interrogation must cease. At this point he has shown that he

intends to exercise his Fifth Amendment privilege; any statement

taken after the person invokes his privilege cannot be other
than

the product of compulsion, subtle or otherwise. Without the
right

to cut off questioning, the setting of in-custody interrogation

operates on the individual to overcome free choice in producing
a

statement after the privilege has been once invoked." 384
U.S., at

473-474.

This passage states that "the interrogation must
cease"

when the person in custody indicates that "he wishes to
remain

silent." It does not state under what circumstances, if
any, a

resumption of questioning is permissible. The passage could be

literally read to mean that a person who has invoked his
"right to

silence" can never again be subjected to custodial
interrogation by

any police officer at any time or place on any subject. Another

possible construction of the passage would characterize
"any

statement taken after the person invokes his privilege" as
"the

product of compulsion" and would therefore mandate its
exclusion

from evidence, even if it were volunteered by the person in
custody

without any further interrogation whatever. Or the passage could

be interpreted to require only the immediate cessation of

questioning, and to permit a resumption of interrogation after a

momentary respite.

It is evident that any of these possible literal interpretations

would lead to absurd and unintended results. To permit the

continuation of custodial interrogation after a momentary
cessation

would clearly frustrate the purposes of Miranda by allowing

repeated rounds of questioning to undermine the will of the
person

being questioned. At the other extreme, a blanket prohibition

against the taking of voluntary statements or a permanent

immunity from further interrogation, regardless of the

circumstances, would transform the Miranda safeguards into

wholly irrational obstacles to legitimate police investigative

activity, and deprive suspects of an opportunity to make
informed

and intelligent assessments of their interests. Clearly,
therefore,

neither this passage nor any other passage in the Miranda
opinion

can sensibly be read to create a per se proscription of
indefinite

duration upon any further questioning by any police officer on
any

subject, once the person in custody has indicated a desire to
remain

silent.

A reasonable and faithful interpretation of the Miranda

opinion must rest on the intention of the Court in that case to
adopt

"fully effective means . . . to notify the person of his
right of

silence and to assure that the exercise of the right will be

scrupulously honored. . . ." 384 U.S., at 479. The critical

safeguard identified in the passage at issue is a person’s
"right to

cut off questioning." Id., at 474. Through the exercise of
his

option to terminate questioning he can control the time at which

questioning occurs, the subjects discussed, and the duration of
the

interrogation. The requirement that law enforcement authorities

must respect a person’s exercise of that option counteracts
the

coercive pressures of the custodial setting. We therefore
conclude

that the admissibility of statements obtained after the person
in

custody has decided to remain silent depends under Miranda on

whether his "right to cut off questioning" was
"scrupulously

honored."

(Footnotes omitted).

The evidence proved that Medley was in custody in the officer’s
vehicle and in handcuffs

when Special Agent Wendell interrogated him. After Special Agent
Wendell read Miranda

rights to Medley, Medley told him "he didn’t want to
waive his rights." When Special Agent

Wendell continued to talk to Medley and "asked him which
rights . . . he wanted to invoke,"

Medley "said he wanted all of his rights." Rather than
accepting Medley’s invocation of his

"rights" and ceasing the interrogation, Special Agent
Wendell brought Sergeant Clark to assist

him. They both talked to Medley extensively but Medley refused
to waive his rights. When they

left Medley alone in the vehicle, both were aware that Medley
expressed his wish not to waive

his Miranda rights.

Special Agent Wendell told Trooper Hawkins that Medley
"didn’t give a statement."

Nevertheless, after only a momentary cessation, Trooper Hawkins
entered the vehicle, read

Miranda rights again to Medley, and renewed the attempt to get a
statement. Thus, Trooper

Hawkins violated Medley’s option to terminate questioning. He
began by repeating for at least

the third time, the Miranda rights.

A: You have the right to remain silent. Anything you say can and

will be used against you in a court of law. You have the right
to

talk to a lawyer and have him present while you’re being

questioned. If you cannot afford to hire a lawyer, one will be

appointed to represent you before any questioning if you wish
one;

and then I always go into the waiver. Do you understand each of

these rights I’ve explained to you? And having these rights in

mind, do you wish to talk to us now? He would never go into with

me –

Q: Don’t paraphrase or describe. Tell me exactly what he said
to

you.

A: I don’t know verbatim how he responded to that; but I know
it

was to the point that he did not want to talk to me at that
point, so I

cut my conversation off then.

Q: You understood then that Mr. Medley did not waive his

Miranda rights?

A: With me, he did not.

Special Agent Wendell testified that within a half hour of his
departure from seeking a

statement from Medley, Trooper Hawkins said Medley wanted to
speak to Special Agent

Wendell. The record contains no testimony from Trooper Hawkins
about the circumstances

giving rise to the conversation with Medley that led him to seek
Special Agent Wendell. The

record clearly establishes, however, that when Special Agent
Wendell returned to the vehicle to

re-interrogate Medley, less than a half hour had lapsed from his
initial efforts. Thus, during a

half-hour period Medley had been given at least three sets of
Miranda warnings and subject to

interrogation by Trooper Hawkins, Sergeant Clark, and twice by
Special Agent Wendell. At no

time did Medley say he was waiving his Miranda rights. Indeed,
he said at all times and on each

reading of Miranda that he would not waive his rights.

The evidence supports the trial judge’s finding that Medley
"didn’t waive his rights."

The Fifth Amendment right against self-incrimination protects an
accused as follows:

[T]he prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates . . . [that] the waiver [of the
right]

is made voluntarily, knowingly and intelligently. If . . . he

indicates in any manner and at any stage of the process that he

wishes to consult with an attorney before speaking there can be
no

questioning. Likewise, if the individual is alone and indicates
in

any manner that he does not wish to be interrogated, the police

may not question him. The mere fact that he may have answered

some questions or volunteered some statements on his own does

not deprive him of the right to refrain from answering any
further

inquiries until he has consulted with an attorney and thereafter

consents to be questioned.

Miranda, 384 U.S. at 444-45.

The evidence clearly establishes that the officers made repeated
efforts to elicit a waiver

after Medley said he understood his rights and did not want to
waive any of them. In addition,

no evidence proved that Medley initiated contact, communication,
or exchange with Sergeant

Clark or Trooper Hawkins. Special Agent Wendell brought in
Sergeant Clark even after Medley

said he would not waive his rights. Trooper Hawkins testified
that he initiated his exchange with

Medley after Special Agent Wendell said Medley "didn’t
give a statement." The pattern of

repeating Miranda warnings to Medley and then questioning him
about his intent represents a

"continuation of custodial interrogation after a momentary
cessation," which the Supreme Court

has recognized as conduct that "would clearly frustrate the
purposes of Miranda by allowing

repeated rounds of questioning to undermine the will of the
person being questioned." Mosley,

423 U.S. at 102. All of the officers testified that Medley
communicated to them that he did not

wish to waive his rights. Each officer who questioned him within
that half-hour period also

knew Medley previously had received Miranda warnings. Thus, the
record clearly established

that Medley’s right to not be further questioned was not
"scrupulously honored." Mosley, 423

U.S. at 104.

Simply put, the officers sought by their repeated approaches to
undermine Medley’s

resolve not to waive his Miranda rights. Within less than a half
hour, four officers "persist[ed] in

repeated efforts to wear down [Medley’s] resistance and make
him change his mind." Mosley,

423 U.S. at 105-06. In view of Medley’s express intention to
exercise his Fifth Amendment

privilege, the statement taken from him after officers
questioned him on four occasions within a

half hour "cannot be other than the product of compulsion,
subtle or otherwise." Miranda, 384

U.S. at 474. Noting the Supreme Court’s warning in Miranda
"that ‘illegitimate and

unconstitutional practices get their first footing . . . by
silent approaches and slight deviations

from legal modes of procedure.’" 384 U.S. at 459 (quoting
Boyd v. United States, 116 U.S. 616,

635 (1886)), we hold that the persistent questioning on four
occasions within a half hour by

officers who read Miranda rights to Medley on at least three of
those occasions demonstrated

that Medley’s refusal to waive his rights was not
"scrupulously honored." Accordingly, we

reverse the order denying the motion to suppress Medley’s
statements, and we remand for a new

trial if the Commonwealth be so advised.

Reversed and remanded.

Humphreys, J., concurring.

I concur with the majority in the judgment, but write separately
because I do not believe

the record in this case demonstrates that the officers failed to
"scrupulously honor[]" Medley’s

refusal to waive his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966). See Michigan

v. Mosley, 423 U.S. 96, 100-04 (1975). I also disagree with the
majority’s implicit suggestion

that Medley affirmatively invoked his right to an attorney.

Miranda recognized that if a suspect "indicates in any
manner, at any time prior to or

during questioning, that he wishes to remain silent, the
interrogation must cease." Miranda, 384

U.S. at 473-74. As the majority recognizes, the United States
Supreme Court has held that "the

admissibility of statements obtained after [a] person in custody
has decided to remain silent

depends under Miranda on whether his ‘right to cut off
questioning’ was ‘scrupulously

honored.’" Mosley, 423 U.S. at 104. However, the Supreme
Court of Virginia has recognized

that "Miranda should not be read so strictly as to require
the police to accept as conclusive any

statement, no matter how ambiguous, as a sign that the suspect
desires to cut off questioning."

Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 737, 741
(1976); Midkiff v.

Commonwealth, 250 Va. 262, 267, 462 S.E.2d 112, 115 (1995).
Indeed, in Mosley, the Court

acknowledged that "a blanket prohibition against the taking
of voluntary statements or a

permanent immunity from further interrogation, regardless of
the circumstances
, would

transform the Miranda safeguards into wholly irrational
obstacles to legitimate police

investigative activity, and deprive suspects of an opportunity
to make informed and intelligent

assessments of their interests." Mosley, 423 U.S. at 102
(emphasis added). Thus, while

[a]n express written or oral statement of waiver of the right to

remain silent or of the right to counsel is usually strong proof
of

the validity of that waiver, [it] is not inevitably either
necessary or

sufficient to establish waiver. The question is not one of form,
but

rather whether the defendant in fact knowingly and voluntarily

waived the rights delineated in the Miranda case. As was

unequivocally said in Miranda, mere silence is not enough. That

does not mean that the defendant’s silence, coupled with an

understanding of his rights and a course of conduct indicating

waiver, may never support a conclusion that a defendant has

waived his rights. The courts must presume that a defendant did

not waive his rights; the prosecution’s burden is great; but
in at

least some cases waiver can be clearly inferred from the actions

and words of the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis
added).

Here, after being read his Miranda rights, Medley told Special
Agent Wendell that he

"would talk to [him], but that he didn’t want to waive
his rights." Special Agent Wendell then

explained to Medley that he could not continue to talk to him,
"because of the third right – you

have the right to talk to a lawyer for advice before we ask you
any questions." Medley

responded, "I want all my rights, but I still want to talk
to you." Medley stated, "I don’t want to

waive anything on this," but again stated "I will talk
to you." After several attempts to explain

the Miranda rights to Medley, Medley continued to claim that he
"did not want to waive his

rights, but . . . would talk to [police]." Each time,
police informed Medley that they could not

continue to talk with him because he had invoked his rights
under Miranda.

Approximately thirty minutes later, Trooper Hawkins approached
Special Agent Wendell

and stated, "[Medley] wants to talk to you." Special
Agent Wendell testified that he again

explained to Medley that he could not talk with him if he was
"not willing to waive [his] rights."

Medley responded that "he could talk to [Wendell] because
[the passenger] had nothing to do

with the investigation." Medley stated, "I’ll talk
to you. I just don’t want anything to be used

against me. I’ll talk to you off record." Special Agent
Wendell quite properly explained that

Medley could not talk with him "off the record because he
invoked his rights." Medley again

"consistently told [Wendell] that he wanted to talk to
[him]."

In my opinion, just as a suspect’s silence may be equivocal,
his invocation of unspecified

"rights," coupled with a course of conduct clearly
indicating that he wishes to talk to police, may

reflect the suspect’s indecision, ambivalence, or even
calculation about whether to cooperate – as

opposed to a clear understanding of his rights, and a clear
invocation of his right to remain silent.

See Midkiff, 250 Va. at 267-68, 462 S.E.2d at 115-16 (noting
that statements such as "I’ll be

honest with you, I’m scared to say anything without talking to
a lawyer," and "I don’t got to

answer that, Dick, you know," did not establish "a
desire to cease all questioning"); see also

Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124, 131-32
(1994) (holding no

violation of Miranda where defendant stated "I just don’t
think that I should say anything" and "I

need somebody that I can talk to," but elected to proceed
with the interrogation and failed to

exercise his right to terminate questioning); see also United
States v. Johnson, 529 F.2d 581, 584

(8th Cir. 1976) (holding no reversible error in admitting
statement where police failed to inquire

further to determine if suspect’s "seemingly
contradictory" actions in refusing to sign a waiver

but agreeing to answer questions "was the product of
intelligence and understanding or of

ignorance and confusion"); Works v. State, 362 N.E.2d 144,
152 (Ind. 1977) (DeBruler, J.,

dissenting) (noting that "[i]n refusing to sign the waiver
and in indicating a willingness to speak,

appellant was taking contradictory positions. Under such
circumstances the police should have

made further inquiry to determine whether appellant’s decision
to relinquish the right to remain

silent was being made out of ignorance and confusion. Without
such an inquiry, no conclusion

could reasonably be reached that appellant had intelligently and
voluntarily relinquished the right

to remain silent.").

In my view, the facts here support the conclusion that police
"scrupulously honored"

Medley’s right to remain silent. In fact, credible evidence in
the record suggests that it was only

because of Medley’s conduct that police inquired further of
Medley to determine whether he

understood his right to remain silent, and/or was ambivalent as
to whether to invoke it or to

waive it.

Nevertheless, the parties – both below and on appeal – argue
this issue in terms of

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

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 [v. United States, 512 U.S. 452, 458 (1994)]; McNeil
v.

Wisconsin, 501 U.S. 171, 176, 178, 111 S. Ct. 2204, 2208, 2209,

115 L. Ed. 2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350,

110 S. Ct. 1176, 1180, 108 L. Ed. 2d 293 (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, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489 (1990);

Arizona v. Roberson, 486 U.S. 675, 683, 108 S. Ct. 2093, 2099,

100 L. Ed. 2d 704 (1988); Edwards, 451 U.S. at 484-85, 101 S.
Ct.

at 1885; 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, 101 S. Ct. at 1884-85.

Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470,
474-75 (1997).

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 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."

Id. at 712, 492 S.E.2d at 475 (quoting Smith v. Illinois, 469
U.S. 91, 96 (1984)) (other citations

omitted).

In the case at bar, the trial court held "[Medley] didn’t
waive his rights; but he initiated

the conversation. So I would overrule the motion [to
suppress]." It is clear from the record that

Medley did not, affirmatively or otherwise, unequivocally invoke
his right to an attorney. Thus,

an Edwards analysis was never triggered and was not appropriate
then nor is such an analysis

appropriate now. See Commonwealth v. Gregory, 263 Va. 134, 147,
557 S.E.2d 715, 723 (2002)

("The Edwards rule does not apply unless the prior
interrogation was custodial and during that

custodial interrogation, the suspect clearly and unequivocally
invoked his right to counsel.").

Indeed, the only question to be answered on this record is
whether the police questioned Medley

in violation of his Miranda rights.

The trial court specifically found that Medley did not waive his
rights. While it is well

settled that "[a] defendant’s waiver of his Miranda
rights is valid only if the waiver is made

knowingly, voluntarily and intelligently . . . [and] [w]hether a
statement is voluntary is ultimately

a legal rather than factual question, [s]ubsidiary factual
questions . . . are entitled to a

presumption of correctness." Gray v. Commonwealth, 233 Va.
313, 324, 356 S.E.2d 157, 163

(1987) (citations omitted). Here, the trial court concluded
factually that Medley "didn’t waive

his rights." Accordingly, contrary to the approach taken by
the majority, there is no need to

determine the legal issues of either the voluntariness of Medley’s
statement, or the applicability

of Edwards. I therefore disagree with the majority’s analysis
concerning the police conduct at

issue here, but I am bound to concur in its judgment because of
the trial court’s factual finding

that Medley never explicitly or implicitly waived any of his
rights under Miranda.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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