Home / Fulltext Opinions / Virginia Court of Appeals / POTTS v. COMMONWEALTH

POTTS v. COMMONWEALTH


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


POTTS

v.

COMMONWEALTH


Tuesday 23rd

Circuit Court No. CR99-1700

October, 2001.

Record No. 2854-99-1

Kevin Michael Potts,

Appellant,

against

Commonwealth of Virginia,

Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton,
Elder, Bray, Annunziata, Bumgardner, Frank, Clements and Agee

Theresa B. Berry (Berry,
Ermlich, Lomax & Bennett, on brief), for
appellant.

H. Elizabeth Shaffer,
Assistant Attorney General (Randolph A.
Beales, Attorney General, on

brief), for appellee.

By opinion dated May 22, 2001, a divided panel
of this Court affirmed the judgment of the trial court. See
Potts v. Commonwealth, 35 Va. App. 485, 546 S.E.2d 229
(2001). We granted rehearing en banc and stayed the
mandate of that decision.

Upon rehearing en banc, the stay
of this Court’s May 22, 2001 mandate is lifted, and the judgment
of the trial court is affirmed for the reasons set forth in the
majority panel decision.

Chief Judge Fitzpatrick, Judges Benton, Elder
and Clements dissent for those reasons expressed in the
dissenting opinion of the panel. See id. at
497-505, 546 S.E.2d at 235-39.

It is ordered that the trial court allow
counsel for the appellant an additional fee of $200 for services
rendered the appellant on the rehearing portion of this appeal,
in addition to counsel’s costs and necessary direct out-of-pocket
expenses. This amount shall be added to the costs due the
Commonwealth in the May 22, 2001 mandate.

This order shall be published and certified to
the trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

Tuesday 26th

June, 2001.

Record No. 2854-99-1

Circuit Court No. CR99-1700

Kevin Michael Potts, Appellant,

against

Commonwealth of Virginia, Appellee.

 

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton,
Willis, Elder, Bray, Annunziata, Bumgardner, Frank, Clements and
Agee

On June 5, 2001 came Kevin Michael Potts, the
appellant, by court-appointed counsel, and filed a petition
praying that the Court set aside the judgment rendered herein on
May 22, 2001, and grant a rehearing en banc
thereof.

On consideration whereof, the petition for
rehearing en banc is granted, the mandate entered herein
on May 22, 2001 is stayed pending the decision of the Court en
banc, and the appeal is reinstated on the docket of this
Court.

The parties shall file briefs in compliance
with Rule 5A:35. The appellant shall attach as an addendum to the
opening brief upon rehearing en banc a copy of the
opinion previously rendered by the Court in this matter. It is
further ordered that

the appellant shall file with the clerk of this
Court twelve additional copies of the appendix previously filed
in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

COURT OF APPEALS OF VIRGINIA

Record No. 2854-99-1

MAY 22, 2001

Present: Judges Benton, Agee and Senior Judge
Hodges

Argued at Chesapeake, Virginia

KEVIN MICHAEL POTTS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

Frederick B. Lowe, Judge

Theresa B. Berry (Berry,
Ermlich, Lomax & Meixel, on brief), for
appellant.

H. Elizabeth Shaffer, Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.


OPINION BY JUDGE G. STEVEN AGEE

On December 30, 1998, the appellant, Kevin
Michael Potts (Potts), was arrested for the murder and conspiracy
to commit the murder of Troy Lee Wilson. After indictment and
prior to trial, a hearing was held July 23, 1999, upon Potts’
motion to suppress his December 30 confession to Wilson’s murder.
The trial court overruled Potts’ motion. On August 19, 1999,
Potts entered a conditional guilty plea in the Circuit Court of
the City of Virginia Beach to Wilson’s murder, pursuant to a plea
agreement reserving his right to challenge the admission of his
confession into evidence pursuant to Code Sect. 19.2-254
(the conspiracy charge being nolle prosequi). On
this appeal, Potts argues the trial court erred in not
suppressing his confession, claiming it was made involuntarily.
We disagree and affirm the trial court’s ruling and Potts’
conviction.

I.

BACKGROUND

On the evening of December 9, 1998, Dawain
Hopkins (Hopkins) found himself unable to pay a debt owed to his
cocaine supplier, Troy Wilson (Wilson). To stall Wilson, Hopkins’
friend, Kevin Potts, paged Wilson and requested $40 of cocaine.
Wilson and Potts agreed to meet later that night at a secluded
location.

At approximately 11:00 p.m., Potts arrived
alone, planning to kill Wilson. Upon Wilson’s arrival, Potts
distracted Wilson, causing him to turn away from Potts. As Wilson
turned, Potts stabbed him in the back of the head. Wilson cried
out and slumped to the ground, the knife embedded in his skull.

Potts dragged the victim to nearby bushes,
fled, but returned almost immediately to find Wilson still alive.
Potts spent the next five minutes "having a conversation
with [Wilson]," asking him such questions as, "What
happened to you? There’s a knife in your head." Afterwards,
Potts took money and possessions belonging to Wilson and
attempted to further conceal the body, but was unable to retrieve
the knife embedded in Wilson’s skull.

Potts returned the next day with a crowbar to
recover the knife and the cocaine Wilson had intended to sell
him. Potts told Hopkins what had happened, and the two returned
to the crime scene. They dug a hole, buried the body and then
threw the knife and some of Wilson’s possessions into a nearby
lake.

On December 30, 1998, Detective Christopher C.
Molleen of the Virginia Beach Police Department learned that
Potts was likely involved in Wilson’s disappearance. Hopkins had
implicated Potts in a statement made to another detective. That
afternoon, Detective Molleen arrested Potts in front of his
mother’s home and took him to the police station. Upon arrival,
Potts was placed in an interview room, his handcuffs were
removed, he was allowed to use the restroom and offered something
to drink.

Detective Molleen then entered the interview
room, sat down, opened a notebook and advised Potts of his Miranda
rights by reading from a printed card. The entire interview was
recorded on videotape, which is part of the record. The detective
then asked Potts if he understood his rights, and Potts said that
he did.

At the time of the interview, Detective Molleen
knew Potts was seventeen years old and not attending school
regularly. He also knew Potts had previously been arrested on
several minor charges (destruction of property, petit larceny);
however, Detective Molleen did not know whether those arrests
involved police interrogation. Detective Molleen likely knew
Potts’ mother had made several demands to other police officers
that her son not be questioned without the presence of an
attorney.

Approximately a minute into the interview,
Potts stated that he wanted to speak with an attorney. The
following exchange and events are revealed on the videotape:

DETECTIVE: I think some things
kind of got out of hand a couple of weeks back,
situation got out control, maybe Dawain was in a
little bit of trouble with a particular person,
maybe you tried to help him out, it got out of
hand, maybe somebody got hurt as a result of it,
does that sound kind of familiar?

POTTS: I don’t know. I want to
talk to a lawyer.

DETECTIVE: You want to talk to
a lawyer.

POTTS: And can I contact my
mom?

DETECTIVE: Nope.

POTTS: She can’t talk to me?

DETECTIVE: Nope.

POTTS: Nope? What’s up with the
lawyer, then?

DETECTIVE: What’s up with the
lawyer? You’ll get one when you get one.

Detective Molleen, from the moment Potts stated
he wanted to speak with a lawyer until this point in the
exchange, sat straight up in his chair, turned his body and chair
away from Potts toward the table, wrote Potts’ statement in his
notes, set his pen down and closed the notebook. Upon Potts’ next
question, the officer turned his head to face Potts, but his body
and chair remained facing the table, with his writing hand and
arm resting next to his closed notebook and pen. Detective
Molleen spoke in a conversational tone.

POTTS: What’s that mean?

DETECTIVE: I can’t put you on
the phone to contact one right now, ’cause they
ain’t workin’ right now. Okay? You’re arrested,
and you’ll be charged and we’ll just go from
there.

POTTS: Well fuck it, then, I
don’t want a damn lawyer. What do you want to
know?

DETECTIVE: Just the truth,
Kevin, just the truth. Things get out of control?

Potts then confessed that he had killed Wilson.
About

forty-five seconds elapsed between Potts’
request to "talk to a lawyer" and his question,
"What do you want to know?"

Approximately twenty-five minutes later,
Detective Molleen briefly left the room. Upon returning,
Detective Molleen told Potts he was going to advise him of his
rights again. Potts answered, "I know them." Detective
Molleen said he understood that but again read Potts his Miranda
rights. The detective then asked Potts, "Do you want to talk
about this thing again?" Potts replied, "Sure." As
Detective Molleen took notes, Potts again confessed. At a later
break in the interview, while Potts was alone, he said out loud:
"I’m going jail for the rest of my life."

At the suppression hearing, Potts testified (1)
that the night before his arrest, he and Hopkins had smoked crack
throughout the night; (2) when they ran out of crack on the
morning of the arrest, they began smoking marijuana; and (3) the
last time he had slept prior to the arrest was two days before.
However, Detective Molleen testified that during the interview

[Potts a]ppeared to be fine.
Didn’t look like he was intoxicated. I didn’t
smell alcohol. Didn’t look like he was on drugs.
Coherent. We had a good conversation, and he was
articulate in his answer.

Potts admitted he never told the detective
during the interview that he was either high on drugs or tired.

Potts testified that, "I had been informed
of what my rights were, but it doesn’t necessarily mean that you
know it [sic]." Potts further testified that he interpreted
Detective Molleen’s statement, "You’ll get [an attorney] when you get one," to mean he did not have a right to an
attorney and he "assumed right off the fact that I wasn’t
going to get one anytime."

Detective Molleen testified that he considered
the interview over the moment Potts stated he wanted to speak
with an attorney, and he prepared to leave the room. He explained
that he told Potts he could not speak with his mother at that
time because

[t]here were many things I had
to do with the arrest procedures for him.
Ultimately a couple of hours down the road he was
going to run into her over at intake. It wasn’t
part of the procedure, and at that time it wasn’t
that I could work it in.

The detective testified that his statement,
"You’ll get one when you get one," was not made in an
attempt to elicit an incriminating response from Potts. Rather,
the statement reflects, "[I]t’s not part of the police
department procedure for me to provide him with an attorney, and
it’s pretty much incumbent on his part to take care of that
arrangement."

II.

ANALYSIS

In reviewing a trial court’s denial of a motion
to suppress, we view the evidence in the light most favorable to
the Commonwealth as the party that prevailed below, and grant to
its evidence "all reasonable inferences deducible
therefrom." Giles v. Commonwealth, 28 Va. App. 527,
532, 507 S.E.2d 102, 105 (1998) (citations omitted). In addition,

[a]lthough 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. Whether the
defendant invoked his right or her right to
counsel, and thereafter knowingly and voluntarily
waived that right, requires that we apply defined
legal standards to the historical facts.

Id. at 532-33, 597 S.E.2d at 105
(citations omitted).

In order for the confession of a criminal
defendant in custody to be admissible as evidence at trial, the
police must advise the defendant of the right to have counsel
present during interrogation. See Quinn v. Commonwealth,
25 Va. App. 702,

710-11, 492 S.E.2d 470, 474 (1997); see also
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981); Miranda
v. Arizona
, 384 U.S. 436, 469, 475 (1966). If the suspect
invokes his right to counsel during interrogation, "all
police-initiated interrogation regarding any criminal
investigation must cease . . . 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." Quinn, 25 Va. App. at
710-11, 492 S.E.2d at 474-75.

The United States Supreme Court in Edwards,
451 U.S. at 484-87, adopted a three-part test to evaluate the
admissibility of a statement given after the right to counsel has
been invoked.

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 discussion or
meetings with the police. Third, if the accused
did initiate further discussions or conversations
with the police, the trial court must then
ascertain whether the accused knowingly and
intelligently waived the previously invoked right
to counsel.

Giles, 28 Va. App. at 532, 507 S.E.2d at
105 (citations omitted).

Without question, Potts unequivocally invoked
his right to counsel, so the first prong of the Edwards
test is met. We must determine (1) whether Potts initiated the
further discussion with police after he invoked his right to
counsel and, if so, (2) whether that discussion without legal
counsel present was done voluntarily.

In regard to Edwards‘ second prong, it
is clear from the record that Potts initiated discussions with
police after invoking his right to counsel. In Edwards,
the Supreme Court of the United States held 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. Elaborating on this
standard, the Court in Oregon v. Bradshaw, 462 U.S. 1039
(1983), recognized that

[t]here are some inquiries,
such as a request for a drink of water or a
request to use a telephone, that are so routine
that they cannot be fairly said to represent a
desire on the part of an accused to open up a
more generalized discussion relating directly or
indirectly to the investigation. Such inquiries
or statements, by either an accused or a police
officer, relating to routine incidents of the
custodial relationship, will not generally
"initiate" a conversation in the sense
in which that word was used in Edwards.

Id. at 1045. However, the Court held
that a custodial suspect’s question, "Well, what is going to
happen to me now?," asked after the request for counsel but
prior to further interrogation by the authorities, initiated
further conversation, validating the suspect’s subsequent waiver
of his Miranda rights. Id. at 1045-47.

Upon Potts’ invocation of the right to counsel,
Detective Molleen wrote the statement, "I want to talk to a
lawyer," in his notes and closed the notebook. Detective
Molleen then prepared to leave the room when Potts asked the
detective, "Can I contact my mom?" This question and
the detective’s answer, as well as the exchange following it,
were permissible as "relating to routine incidents of the
custodial relationship." Id. at 1045. These inquiries
alone would not constitute an initiation of conversations with
the police sufficient to waive the right to counsel.

However, after the detective answered Potts’
procedural questions, Potts unequivocally continued the
conversation, waiving his right to counsel when he told the
detective, "[W]ell fuck it, then, I don’t want a damn
lawyer. What do you want to know?" In this case, Potts’
waiver of his right to counsel was just as clear and unequivocal
as his prior assertion of it. Potts’ statement and inquiry
plainly show a willingness to further discuss the detective’s
investigation. The second prong of the Edwards
admissibility test is met.

As to the last prong of the Edwards
test, Potts claims he was subjected to coercive circumstances
and, therefore, his waiver and ensuing confession were
involuntary. In assessing voluntariness, the court must determine

whether "the statement is
the ‘product of an essentially free and
unconstrained choice by its maker,’ or
. . . whether the maker’s will ‘has
been overborne and his capacity for
self-determination critically impaired.’" Stockton
v. Commonwealth
, 227 Va. 124, 140, 314 S.E.2d
371, 381 (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973)). In determining whether
the waiver was knowing and intelligent, the court
must examine the totality of the circumstances. Fare
v. Michael C.
, 442 U.S. 707, 717 (1979).
Where a juvenile is involved, "[t]his
includes evaluation of the juvenile’s age,
experience, education, background, and
intelligence, and whether he has the capacity to
understand the warnings given him, the nature of
his Fifth Amendment rights, and the consequences
of waiving those rights." Id. at 725;
see also Green v. Commonwealth,
223 Va. 706, 710, 292 S.E.2d 605, 607 (1982); Harris
v. Commonwealth
, 217 Va. 715, 719, 232 S.E.2d
751, 755 (1977); Grogg v. Commonwealth, 6
Va. App. 598, 612, 371 S.E.2d 549, 556 (1988).

Roberts v. Commonwealth, 18 Va. App.
554, 557-58, 445 S.E.2d 709, 711 (1994).

In reviewing the totality of the circumstances
in this case, the trial court’s ruling that Potts’ confession was
knowingly, intelligently and voluntarily made is supported by the
evidence.

While Potts was seventeen years old and perhaps
a high school dropout at the time of his arrest, he appears
intelligent and articulate. Detective Molleen testified that
Potts appeared to be fine and did not look high on drugs or sleep
deprived. Detective Molleen’s impression is clearly supported by
the videotape of the interview, from which the trial court could
reasonably find that Potts’ conversation was appropriate, his
answers were responsive, he did not have difficulty focusing on
what was transpiring, and while he cried on occasion, he remained
calm.

Although "it is desirable to have a
parent, counsel or some other interested adult or guardian
present when . . . a juvenile waives fundamental
constitutional rights and confesses to a serious crime
. . . , the mere absence of a parent or counsel does
not render the waiver invalid." Grogg, 6 Va. App. at
613, 371 S.E.2d at 557. The absence of a parent is but one factor
to be considered in the totality of the circumstances and is
insufficient by itself to render Potts’ confession involuntary. Id.;
see also Novak v. Commonwealth, 20 Va. App.
373, 387-88, 457 S.E.2d 402, 409 (1995) (absence of parent at
questioning of sixteen-year-old defendant insufficient to
preclude finding that confession was voluntary).

We find no support for the allegation of
coercion. Potts was questioned by one plainclothes detective in a
room large enough for him to get up and move around, and he wore
no restraints. Cf. Grogg, 6 Va. App. at 614, 371
S.E.2d at 557 (questioning of juvenile defendant, not in
handcuffs, by three plainclothes officers was not
"coercive" environment). As Potts confirmed at the
suppression hearing, Detective Molleen never threatened him or
told him to keep talking once he had waived his rights.

At no time did Detective Molleen tell Potts
that he could not speak with an attorney; instead, Detective
Molleen told Potts that he could not provide him with one right
then and that Potts would have one when he arranged for one. As
the Supreme Court of Virginia has observed: "Miranda
nowhere requires that a suspect be told he has the right to
immediate appointment of counsel. Indeed, language in Miranda
negates this very proposition." Poyner v. Commonwealth,
229 Va. 401, 409, 329 S.E.2d 815, 822, cert. denied,
474 U.S. 865 (1985).

Potts testified at the suppression hearing that
while he was read his rights, he did not necessarily understand
them. He testified that he thought he would be able to go home if
he talked to the police. Assuming Potts mistakenly believed this,
he also admitted that Detective Molleen never threatened him,
never encouraged him to talk and never promised leniency or gave
any other inducements. Potts’ mistake, therefore, was not the
result of police coercion, the necessary predicate for a finding
that a confession is involuntary. Bottenfield v. Commonwealth,
25 Va. App. 316, 323, 487 S.E.2d 883, 887 (1997) (citing Colorado
v. Connelly
, 479 U.S. 157, 167 (1986)).

Upon a review of the record and applicable law,
we hold the trial court could reasonably find that Potts’
confession was properly admissible under Edwards. Potts
initiated the discussion with police after invoking his right to
counsel. The Potts initiated conversation led to his subsequent
confession without legal counsel present and that confession was
knowingly, intelligently and voluntarily made.

The denial of the motion to suppress was
proper, and the conviction is, accordingly, affirmed.

Affirmed.

 

Benton, J., dissenting.

 

I would hold that the trial judge admitted the
juvenile’s statements in evidence in violation of the Fifth
Amendment.

I.

One of the constitutional safeguards
established by Miranda v. Arizona, 384 U.S. 436 (1966), is
the right of an accused person to have an attorney present at a
custodial interrogation and to end the interrogation by invoking
this right. Id. at 469, 474-75. See also Edwards
v. Arizona
, 451 U.S. 477, 485-86 (1981). The Supreme Court
has held that "the rigid rule [of Miranda means] that
an accused’s request for an attorney is per se an
invocation of his Fifth Amendment rights." Fare v.
Michael C.
, 442 U.S. 707, 719 (1979). Thus, if, in violation
of these rights, "the interrogation continues without the
presence of an attorney and a statement is taken, a heavy burden
rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed
counsel." Miranda, 384 U.S. at 475 (citing Escobedo
v. Illinois
, 378 U.S. 478, 490 n.14 (1964)).

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." 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."

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

The Supreme Court has also explained "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." Edwards, 451 U.S. at 484-85. The rule in
"Edwards focuses on the state of mind of the suspect
and not of the police." Arizona v. Roberson, 486 U.S.
675, 687 (1988).

Before Detective Molleen began interrogating
Kevin Michael Potts, who was seventeen years old and lived with
his parents, he was aware that Potts’ mother had refused
permission for the police to interview Potts. The detective
disregarded her express request. After he read Miranda
warnings to Potts, the following colloquy occurred:

 

DET. MOLLEEN: I think some
things kind of got out of hand a couple of weeks
back, situation got out of control, maybe Dawain
was in a little bit of trouble with a particular
person, maybe you tried to help him out, it got
out of hand, maybe somebody got hurt as a result
of it, does that sound kind of familiar?

POTTS: I don’t know. I want to
talk to a lawyer.

DET. MOLLEEN: You want to talk
to a lawyer.

POTTS: And can I contact my
mom?

DET. MOLLEEN: Nope.

POTTS: She can’t talk to me?

DET. MOLLEEN: Nope.

POTTS: Nope? What’s up with the
lawyer, then?

DET. MOLLEEN: What’s up with
the lawyer? You’ll get one when you get one.

POTTS: What’s that mean?

DET. MOLLEEN: I can’t put you
on the phone to contact one right now, ’cause
they ain’t workin’ right now. Okay? You’re
arrested, and you’ll be charged and we’ll just go
from there.

POTTS: Well fuck it, then, I
don’t want a damn lawyer. What do you want to
know?

DET. MOLLEEN: Just the truth,
Kevin, just the truth. Things get out of control?

Potts unambiguously requested to speak to an
attorney. Mimicking Potts’ request, the detective gave no
indication that it would be honored and, thus, effectively
ignored that request. Potts next asked to contact his mother,
which was a rational way for a juvenile to seek an adult’s
assistance in obtaining an attorney. If we assume the detective
intended to honor Potts’ request for an attorney, it would appear
that the detective would have either permitted Potts to contact
his parents or told him when contact would be permitted. Instead,
by his blunt, terse refusal of Potts’ request to speak to his
mother, an adult Potts trusted, the detective effectively and
immediately denied Potts the right to an attorney. By telling
Potts, "you’ll get [an attorney] when you get one," the
detective essentially communicated to Potts that he had to make
those arrangements himself. Indeed, the detective testified at
the hearing, "it’s pretty much incumbent on his part to take
care of that arrangement." At no time did the detective
indicate to Potts how his right to an attorney would be honored
or when. The detective’s statement, "you’re arrested, and
you’ll be charged and we’ll just go from there," effectively
communicated a rejection of Potts’ request for counsel.

"The concern of the Court in Miranda
was that the ‘interrogation environment’ created by the interplay
of interrogation and custody would ‘subjugate the individual to
the will of his examiner’ and thereby undermine the privilege
against compulsory self-incrimination." Rhode Island v.
Innis
, 446 U.S. 291, 299 (1980). As the Court noted in Miranda:
"If authorities conclude that they will not provide counsel
during a reasonable period of time in which investigation
. . . is carried out, they may refrain from doing so
without violating the person’s Fifth Amendment privilege so long
as they do not question him during that time." 384 U.S. at
474. Miranda and Edwards were intended to
"dispel the compulsion inherent in custodial
surroundings." Id. at 458. We ignore reality if we
assume a juvenile, such as Potts, has the means, maturity, and
capability to secure on his or her own initiative, while confined
in jail, an attorney to assist him or her. See Fare,
442 U.S. at 725 (including a juvenile’s age in the determination
whether a waiver occurred).

In addition, the Supreme Court has expressly
ruled that "custodial interrogation for purposes of Miranda
includes both express questioning and words or action that
. . . the officer knows or reasonably should know are
likely to ‘have . . . the force of a question on the accused,’
and therefore be reasonably likely to elicit an incriminating
response." Pennsylvania v. Muniz, 496 U.S. 582, 601
(1990) (citation omitted). I believe the detective’s mimicking
responses were designed to cause Potts to engage in additional
conversation. They had the effect of stimulating conversation and
were the functional equivalent of continuing interrogation. The
rule in Edwards was not intended to give the law
enforcement officers an opportunity to use interrogation tactics
to snare unwary teenagers into asking questions about the means
to effect their Miranda rights and then to use those
inquiries as a guise to blatantly disregard constitutionally
required procedures. When Potts asked to contact his mother, who
was his obvious means of securing an attorney, the detective
curtly denied that request. Following this denial, the
detective’s further mimicking statements, "What’s up with
the lawyer? You’ll get one when you get one," effectively
refused to honor Potts’ request. Seeking some explanation about
his means of contacting an attorney, which the detective’s
responses certainly made illusory, Potts was again rebuffed by
the detective’s response that no attorneys were working. This
response only served, as did the others, to eliminate Potts’
options for obtaining an attorney.

The officer’s technique manifestly raised the
level of isolation and hostility imposed on this juvenile by
denying him even the most basic assurance that his request for
counsel would be honored. Indeed, the detective never told Potts
that the police would honor his request for an attorney. His
responses to Potts’ inquiries about an attorney conveyed the
unmistakable message that the detective considered Potts’ request
to be frivolous and that an attorney might arrive some day
"when [Potts arranged to] get one." Potts’ exasperated
statement, "I don’t want . . . a lawyer," was
the culmination of impermissible conduct by the detective. Thus,
I would hold that the detective’s curt and mimicking responses
constituted badgering that was a continuation of the
interrogation in violation of Miranda. I would also hold
that Potts’ inquiries were "so routine that they cannot be
fairly said to represent a desire . . . to
. . . ‘initiate’ a conversation in the sense in which
that word was used in Edwards." Oregon v. Bradshaw,
462 U.S. 1039, 1045 (1983).

II.

In addition to these violations of Miranda
and Edwards, the record establishes that the Commonwealth
failed to prove Potts’ statements were voluntarily, knowingly,
and intelligently made. See Miranda, 384 U.S. at
444. Even before Miranda, the Fifth Amendment required
that confessions be found voluntary before they could be admitted
as evidence. See Dickerson v. United States, 530
U.S. 428, 433 (2000). In making the determination whether a
statement was voluntarily, knowingly, and intelligently made, the
trial judge must examine the totality of the circumstances,
including the characteristics of the accused, and determine
whether the accused’s will was overborne by the circumstances
surrounding the giving of the confession. Schneckloth v.
Bustamonte
, 412 U.S. 218, 225-26 (1973).

The ultimate test remains that
which has been the only clearly established test
in Anglo-American courts for two hundred years:
the test of voluntariness. Is the confession the
product of an essentially free and unconstrained
choice by its maker? If it is, if he has willed
to confess, it may be used against him. If it is
not, if his will has been overborne and his
capacity for self-determination critically
impaired, the use of his confession offends due
process.

Culombe v. Connecticut, 367 U.S. 568,
602 (1961). The Supreme Court recently reaffirmed that it has
"never abandoned this

. . . jurisprudence, and thus
continue[s] to exclude confessions that were obtained
involuntarily." Dickerson, 530 U.S. at 434.

Even if we assume, contrary to the evidence,
that Potts initiated the conversation that led to the confession,
the Supreme Court has ruled as follows:

If, as frequently would occur
in the course of a meeting initiated by the
accused, the conversation is not wholly

one-sided, it is likely that
the officers will say or do something that
clearly would be "interrogation." In
that event, the question would be 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.

Edwards, 451 U.S. at 486 n.9.
Furthermore, the principle is also well established that
"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." Bradshaw,
462 U.S. at 1044. See also Michigan v. Jackson,
475 U.S. 625, 633 n.6 (1986) (noting that the accused’s request
for counsel is "an extremely important fact" in
considering whether there was a valid subsequent waiver of the
right to counsel).

Noting that special problems exist with respect
to waivers by juveniles, the Supreme Court has ruled that
"[i]f counsel was not present for some permissible reason
when an admission was obtained [from a juvenile], the greatest
care must be taken to assure that the admission was voluntary, in
the sense not only that it was not coerced or suggested, but also
that it was not the product of ignorance of rights or of
adolescent fantasy, fright or despair." In re Gault,
387 U.S. 1, 55 (1967). See also Haley v. Ohio,
332 U.S. 596, 599-600 (1948). Clearly, the detective who
interrogated Potts did not use "the greatest care" to
ensure that Potts’ "admission was voluntary." Id.
First, he ignored Potts’ request for counsel. He then flatly
refused to allow Potts to consult with his parent, a trusted
adult who had the wherewithal to secure counsel for Potts, and,
indeed, who had requested the police not to question Potts in her
absence. As if to ensure that Potts would feel the coercive
nature of his detention, the officer next misrepresented to Potts
that no lawyer could be secured at that hour. Lastly, he told
Potts that the process would continue without informing Potts
whether or when he would have an attorney. In short, this officer
conveyed to Potts the unmistakable message that he was on his own
in trying to secure an attorney and in dealing with the police.

Recognizing again the special problems of
juveniles, the Supreme Court observed the following in a case
where the juvenile failed to ask for a lawyer or parent:

[The period] — during which
time the boy’s mother unsuccessfully tried to see
him and he was cut off from contact with any
lawyer or adult advisor — gives the case an
ominous cast. The prosecution says that the boy
was advised of his right to counsel, but that he
did not ask either for a lawyer or for his
parents. But a 14-year-old boy, no matter how
sophisticated, is unlikely to have any conception
of what will confront him when he is made
accessible only to the police. That is to say, we
deal with a person who is not equal to the police
in knowledge and understanding of the
consequences of the questions and answers being
recorded and who is unable to know how to protect
his own interests or how to get the benefits of
his constitutional rights.

. . . He cannot be
compared with an adult in full possession of his
senses and knowledgeable of the consequences of
his admissions. He would have no way of knowing
what the consequences of his confession were
without advice as to his rights – from someone
concerned with securing him those rights – and
without the aid of more mature judgment as to the
steps he should take in the predicament in which
he found himself. A lawyer or an adult relative
or friend could have given the petitioner the
protection which his own immaturity could not.
Adult advice would have put him on a less unequal
footing with his interrogators. Without some
adult protection against this inequality, a
14-year-old boy would not be able to know, let
alone assert, such constitutional rights as he
had. To allow this conviction to stand would, in
effect, be to treat him as if he had no
constitutional rights.

Gallegos v. Colorado, 370 U.S. 49, 54-55
(1962).

III.

In summary, the record in this case establishes
that the detective denied Potts’ express request for counsel; he
denied Potts’ explicit request to speak to his mother, which was
an implicit request for aid in the securing of his rights; and he
refused those requests in such a fashion that Potts was given the
unmistakable message that he had to fend for himself in dealing
with the police. I would hold that the record established a
violation of Miranda, a violation of Edwards, and a
confession that was not voluntary, knowing, or intelligent.
Accordingly, I would hold that the trial judge erred in refusing
to suppress the confession, and I would reverse the conviction
and remand for a new trial.

Scroll To Top