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REDMOND v. COMMONWEALTH


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REDMOND

v.

COMMONWEALTH


Tuesday 23rd

October, 2001.

Record No. 0762-00-1

Circuit Court No. CR99-3244

Torie Devon Redmond,

Appellant,

against

Commonwealth of Virginia,

Appellee.

Before Chief Judge Fitzpatrick, Judges Benton,
Elder,

Bray, Annunziata, Bumgardner, Frank, Clements,
and Agee

Edward W. Webb (Office of
the Public Defender, on brief), for
appellant.

Leah A. Darron, Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.

Upon a Rehearing En Banc

By unpublished opinion, a divided panel of this
Court reversed the appellant’s conviction and remanded for a new
trial. Redmond v. Commonwealth, No. 0762-00-1 (Va. Ct.
App. May 22, 2001). We stayed the mandate of that decision and
granted rehearing en banc.

Upon a rehearing en banc, the
stay of the May 22, 2001 mandate is lifted, and the judgment of
the trial court is reversed and remanded for a new trial in
accordance with the majority panel opinion.

Judges Bray, Bumgardner, and Agee dissent for
the reasons set forth in the panel dissent.

This order shall be certified to the trial
court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

COURT OF APPEALS OF VIRGINIA

MAY 22, 2001

Record No. 0762-00-1

Present: Judges Benton, Bray and Frank

Argued at Chesapeake, Virginia

TORIE DEVON REDMOND

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

Alan E. Rosenblatt, Judge

Edward W. Webb (Office of the
Public Defender, on brief), for appellant.

Leah A. Darron, Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.

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

On this appeal, Torie Devon Redmond contends
that the police obtained a statement from him in violation of the
Fifth Amendment and that a trial judge erred in refusing to
suppress the statement. For the reasons that follow, we reverse
the conviction and remand for a new trial.

I.

The facts pertaining to the motion to suppress
are essentially undisputed. On May 7, 1999, the police arrested
Redmond for the murder of Gattis Bowling, Jr., and took Redmond
to an interview room. The record contains a videotape and written
transcript of the interrogation of Redmond by Detective
Christopher C. Molleen. Prior to advising Redmond of his Miranda
rights, Detective Molleen made several comments including the
following:

[DETECTIVE]: . . . . It’s no
miracle that you’re down here. Okay? Um, we’ve
been doing a lot of investigating here lately,
you have seen us in the neighborhood for the last
few days. Probably one of the worst things you
can do is underestimate me or some the guys that
are in here. Okay?

[REDMOND]: Hm Hmm.

[DETECTIVE]: Keep that in mind.
It’s not pick on Torie Redmond day. I don’t know
Torie Redmond that well. Torie Redmond ain’t
never done anything to me. Okay? I’m not here to,
uh, bring you down or make things tough on you,
but we got some things that we need to get
straight. And you know it’s no miracle why you’re
here. Deep down you do. And we’ll talk about it.
You know, a lot of times in life you go out and
do something and it can start off as one thing
and end up another thing. And that’s the bottom
line. You can have the best intentions or the
worst intentions, and things can happen quick and
you get out of hand and things can happen. So,
like I told you, you’re not here by accident and
if you listen to what I’ve got to say and make a
smart decision. You’re under arrest. You’re in
custody. You know what case I’m investigating,
and that’s what you’re under arrest for. So, what
I’m going to do is I’m going to advise you of
your rights and we’ll sit here and try to have an
intelligent conversation. You just remember, you
know, there’s a lot, there’s a lot of difference,
there’s a lot of differences in crimes. Okay? And
this is a very serious crime and you don’t want
to leave serious crimes up to speculation. And so
I could speculate and make it into one thing. We
could speculate, it would be another thing when
actually it’s something else. Okay, you can
speculate that it’s very serious or a bad
situation, an accidental situation or could look
very cruel. You know what I’m saying? Does that
make sense?

[REDMOND]: Pretty much.

[DETECTIVE]: Well, I’m telling
you. And I’ll tell you a couple examples exactly
what. You have the right to remain silent.
Anything you say can be used against you in
Court. You have the right to talk to a lawyer and
have him present with you while you are being
questioned. If you cannot afford to hire a
lawyer, one will be appointed to represent you
before any questioning, if you wish. You can
decide at any time to exercise these rights, not
answer any questions or make any statements. Do
you understand?

[REDMOND]: Yeah.

For several minutes after this exchange, the
detective made other lengthy comments to Redmond indicating he
could prove Redmond’s involvement and urging Redmond to respond.

[DETECTIVE]: You have to tell
the truth and if you don’t try to hide something,
I’m going to prove you’re hiding it. And,
ultimately, you know, you’re the one that’s going
to suffer the consequences, not me.

[REDMOND]: I don’t want to seem
arrogant or nothing like that.

[DETECTIVE]: I don’t want,
Tory.

[REDMOND]: These are some
pretty deep charges.

[DETECTIVE]: Listen to what I
got to say. I don’t think. I don’t want you to
seem arrogant. Okay. I don’t want you to seem
arrogant. I want you to do the best thing for
yourself. And the best thing for yourself is you
need to take some of the heat off your back.
Yeah, they are very serious charges. This is the
only opportunity you’re ever going to talk and
give your side. Period. This is . . .

[REDMOND]: Can I speak to my
lawyer? I can’t even talk to lawyer before I make
any kinds of comments or anything?

[DETECTIVE]: You can do
anything you like, but I’m telling, I’m telling
you like this. You have the freedom to do
anything you want. You have the freedom to go to
sleep right now if you want to do that. Okay? You
have the freedom to sit here and talk to me.
Okay? The point is and what I’m trying to tell
you is, this is your opportunity; this is your
time. There ain’t tomorrow, there ain’t later.
Okay? There’s not later. There is no later. And
I’m trying, I’m trying to give you because you
are a 24 year old man the opportunity to help
yourself out a little bit.

After several minutes of further lengthy
comments by the detective, Redmond confessed his involvement in
the murder of Bowling.

After considering the videotape of the
interrogation, the transcript of the interrogation, and the
argument of counsel, a judge ruled prior to trial that Redmond’s
statement was "equivocal; and, therefore, it’s not a clear
invoking of his rights." Thus, the judge denied the motion
to suppress the statement. Following trial, a jury convicted
Redmond of first degree murder. This appeal followed.

II.

"The warnings mandated by [Miranda v.
Arizona
, 384 U.S. 436, 467-73 (1966)], as a prophylactic
means of safeguarding Fifth Amendment rights, require that a
person taken into custody be advised immediately that he has the
right to remain silent, that anything he says may be used against
him, and that he has a right to retained or appointed counsel
before submitting to interrogation." Doyle v. Ohio,
426 U.S. 610, 617 (1976) (citation omitted). The police must
explain these rights to the accused "before questioning
begins." Davis v. United States, 512 U.S. 452, 457
(1994). After the police explain these rights, "[i]f the
individual states that he wants an attorney, the interrogation
must cease until an attorney is present." Miranda,
384 U.S. at 474.

"[T]he Court fashioned in Miranda
the rigid rule that an accused’s request for an attorney is per
se an invocation of his Fifth Amendment rights requiring
that all interrogation cease." Fare v. Michael C.,
442 U.S. 707, 719 (1979). See also Edwards v.
Arizona
, 451 U.S. 477, 485-86 (1981).

[T]he test for determining
whether the accused invoked the right to counsel
is an objective one. The Court must determine
whether the accused "articulate[d] his
desire to have counsel present sufficiently
clearly that a reasonable police officer in the
circumstances 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) (en banc) (quoting Davis,
512 U.S. at 459).

When the detective began the interrogation, he
did not immediately give Redmond the Miranda warnings and
never inquired whether Redmond wished to make a statement or
waive his right to counsel. Instead, he first began by telling
Redmond he was "not [there] by accident" and that
Redmond should "make a smart decision." He then
informed Redmond that he was "going to advise [Redmond] of
[his] rights and we’ll sit here and try to have an intelligent
conversation." At no time did the detective inquire of
Redmond whether Redmond wished to waive his Miranda rights
and speak to him. The implicit message in the interrogation prior
to the giving of the Miranda warnings is that they will
have a "conversation" after the reading of his rights.
Indeed, that is precisely what the detective sought to do until
Redmond said "Can I speak to my lawyer? I can’t even talk to
a lawyer before I make any kind of comments or anything?"

Redmond’s statement "Can I speak to my
lawyer" is an unambiguous request to talk to his counsel and
was directly responsive to the detective’s earlier warning that
"You have the right to talk to a lawyer." If there
could have been any doubt about Redmond’s intention, his further
request would have alerted any reasonable police officer of his
purpose. When he said, "I can’t even talk to a lawyer before
I make any kind of

comments or anything?," he reinforced his
inability to deal with the interrogation without counsel.

Without any doubt, the detective’s response to
Redmond demonstrates that he understood Redmond’s statements to
be a request for counsel. Rather than stopping the interrogation,
the detective made a lengthy response, which began with the
following:

[DETECTIVE]: You can do
anything you like, but I’m telling, I’m telling
you like this. You have the freedom to do
anything you want. You have the freedom to go to
sleep right now if you want to do that. Okay? You
have the freedom to sit here and talk to me.
Okay? The point is and what I’m trying to tell
you is, this is your opportunity; this is your
time. There ain’t tomorrow, there ain’t later.
Okay? There’s not later. There is no later. And
I’m trying, I’m trying to give you because you
are a 24 year old man the opportunity to help
yourself out a little bit.

Thus, instead of honoring the request as
required by Miranda, Edwards, and their progeny,
the detective deflected Redmond’s request with the generalized
notion that Redmond could "do anything you like." He
then sought to persuade Redmond "to help [him]self" and
talk without counsel. He continued the interrogation even though
Redmond did not waive his Miranda rights. We hold that in
so doing the detective gained Redmond’s statement in violation of
his Fifth Amendment rights.

Redmond’s statement included his confession
that he stabbed the deceased and described the circumstances of
the stabbing. The introduction of that statement at trial was not
harmless. Even if "the other evidence amply supports the
jury’s verdicts [the error is not harmless when] the disputed
testimony may well have affected the jury’s decision." Catera
v. Commonwealth
, 219 Va. 516, 519, 248 S.E.2d 784, 786
(1978). Accordingly, we reverse the conviction and remand for a
new trial.

Reversed and remanded.

Bray, J., dissenting.

 

In the years since Miranda,
it has become well established that once an
accused expresses a desire to exercise his right
to counsel, authorities may not further
interrogate the accused until counsel is present
unless the accused initiates further conversation
or exchanges with the authorities.

Midkiff v. Commonwealth, 250 Va. 262,
266, 462 S.E.2d 112, 114 (1995) (citing Edwards v. Arizona,
451 U.S. 477 (1981)). However, the Virginia Supreme Court
"has consistently held that a clear and unambiguous
assertion of the right to counsel is necessary to invoke the Edwards
rule." Id. at 266, 462 S.E.2d at 115 (emphasis
added); Green v. Commonwealth, 27 Va. App. 646, 653, 500
S.E.2d 835, 838 (1998). Thus, "if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a
reasonable police officer in light of the circumstances would
have understood only that the suspect might be invoking
the right to counsel," questioning need not cease. Davis
v. United States
, 512 U.S. 452, 459 (1994) (emphasis added).

In undertaking an Edwards/Davis
analysis, a trial court must apply an objective test to determine
if an accused "’articulate[d] his desire to have counsel
present sufficiently clearly’" for a "’reasonable
police officer’" to "’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) (quoting Davis,
512 U.S. at 459). "[W]hether an accused requested counsel is
. . . a factual determination that will not be
disturbed on appeal unless clearly erroneous." Mills
v. Commonwealth
, 14 Va. App. 459, 468, 418 S.E.2d 718, 723
(1992) (citations omitted) (emphasis added).

Here, during an ore tenus hearing
to address defendant’s motion to suppress, the trial court viewed
the videotape of the subject interrogation, together with a
transcript of the exchange. Thereafter, following argument of
counsel and a review of relevant case law, the court expressed
"no problem at all" finding defendant’s query to
Detective Molleen, "Can I speak to my lawyer?,"
"somewhat ambiguous." A review of the record discloses
no clear error in the court’s factual finding.

When defendant inquired, "Can I speak to
my lawyer?," followed, without pause or interruption, by,
"I can’t even talk to [a] lawyer before I make any kinds of
comments or anything?," he was, perhaps, seeking
clarification or confirmation of the Miranda right to
counsel. Accordingly, Molleen perceived a question and, in
response, assured defendant, "You can do anything you like
. . . . You have the freedom to do anything you
want," followed by additional comments that were neither
coercive nor misleading. Thus, simply stated, defendant was
properly advised of his Miranda rights, asked two related
questions of Molleen, both of which were properly answered, and,
without further inquiry, confessed to the offense. Such

evidence does not reflect an unambiguous,
unequivocal invocation of the right to counsel.

I, therefore, respectfully dissent.

 

FOOTNOTES:

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

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