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Virginia Bound by Maryland Immunity Agreement

A Bedford County circuit judge will suppress or exclude statements made by a felony murder defendant subject to terms of an immunity agreement with prosecutors in Montgomery County, Maryland.

The court first addressed whether the commonwealth is contractually obligated by the immunity agreement even though it is not a party to the agreement. Cooperation immunity agreements are contractual in nature and, thus, are subject to principles of contract law. The immunity agreement appears on its face to be a valid, enforceable contract and I am aware of no reason to find otherwise.

Though the Commonwealth of Virginia is not a party to the immunity agreement, I find that it is in privity with the Assistant State’s Attorney for Montgomery County, Maryland, in his capacity as a party to the immunity agreement, the Commonwealth of Virginia having a successive, virtually identical interest and objective in investigating the same crimes and prosecuting the same individual.

Constitutional rights are implicated as well. Not only are substantive due process notions of fundamental fairness as guaranteed by the Fourteenth Amendment applicable to determination of enforceability of the immunity agreement in this case, but so is the Self-Incrimination Clause of the Fifth Amendment as incorporated into the Fourteenth Amendment.

I therefore rule as a matter of constitutional analysis that the immunity agreement applies to any and all statements made by the defendant that are subject to its terms and that the Commonwealth of Virginia is bound by the immunity agreement.

The defendant has also filed a motion to suppress certain custodial statements he made to law enforcement officers.

Law enforcement officers must inform a suspect in a custodial interrogation of certain rights, including the right to remain silent and to have the assistance and presence of legal counsel during the interrogation. If the accused expresses a desire to have counsel present during a custodial interrogation, law enforcement offices must cease their interrogation until counsel is present or the accused initiates further communication with authorities.

To invoke these protections, however, an accused must clearly and unambiguously assert his right to counsel.

Near the beginning of an interview, the defendant was advised of the Miranda rights and he indicated he understood them. Well into the interview, the defendant stated: “…if you’re gonna charge me, charge me and let me get a lawyer.”

I do not find this to be a clear and unambiguous request for counsel at the moment of the statement, but rather an expression of an intent to request counsel if subsequently charged.

The defendant’s motion to suppress statements is denied.

The defendant made the following statement at the beginning of another custodial interrogation conducted by law enforcement officers:

“Yeah. Well… ‘Cause I was at the point today where I was just gonna say you know what? I’ve been sayin’ it for a long time and I stopped sayin’ it. I want a lawyer and I take the fifth ‘cause I’m getting tired of this.”

Again, I do not find this statement to be a clear and unambiguous request for counsel at the moment of the statement, but rather a statement of a request that he previously considered making, but was not then making.

The defendant’s motion to suppress the statements is denied.

The defendant argued that a custodial interrogation during his transport from Delaware to Bedford County violated his Sixth Amendment right to Counsel.

A criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversarial judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Arrest is not a formal charge that constitutes the initiation of adversarial proceedings that implicate the Sixth Amendment.

From my review of the record, it is my understanding that the defendant first appeared before a magistrate here is Bedford County, was advised of the charges upon which he had been arrested, and was denied bail, after the custodial interrogation during the transport from Delaware.

I therefore find that the Sixth Amendment right to counsel had not attached as of the time of the custodial interrogation and defendant’s motion to suppress statement he made during this interrogation is denied.

Commonwealth v. Welch (Updike) Nos. CR15000189-00, CR15000189-01, Jan. 6, 2017, Bedford County Cir.Ct.; W. Wesley Nance, Anthony F. Anderson, Aaron B. Houchens for the parties. (VLW 017-8-084, 7 pp.)

VLW 017-8-084