Attorney request was not clear and unambiguous

Appellant’s statement to a police de­tective, “Hey, can you call my wife to tell her to call my lawyer for me?” was not a clear and unambiguous assertion of his right to counsel. The trial court properly denied his motion to suppress his statements.

Appellant’s conviction of possessing a firearm after being convicted of a violent felony is affirmed.

Background

Gill, a detective, arrested appellant on Jan. 18, 2018, for a firearm violation following an incident in which gunshots were fired shortly after midnight on New Year’s Day. Gill transported him to the police station where Clinch, another de­tective, took appellant to an interview room.

Appellant stated, “Hey, can you call my wife to tell her to call my lawyer for me?” Clinch asked if appellant had the num­ber. Appellant said he was going to supply the number. Brooks, an officer who was removing appellant’s handcuffs, told him to “sit tight.” As Clinch left to make coffee, appellant stated, “You’re gonna make the phone call.” Clinch said he would do so “when I get the chance.”

Clinch and Brooks left. Clinch told Gill that appellant said something about calling his girlfriend so she could call a lawyer. Neither Gill nor Clinch called ap­pellant’s wife.

Gill entered the room about 10 minutes later. He advised appellant of his rights and confirmed that appellant understood them. Appellant then signed a waiver of rights and made statements that were used as evidence at trial.

There were surveillance videos of the incident, one from outside of a house at the scene and one from the inside of an apartment building near the scene. Ap­pellant admitted that images from the inside video depicted him. He admitted to being at the scene but denied seeing anyone firing a gun. He explained that a black object in his hand next to his thigh was a cell phone. Appellant had a black cell phone with him when he was arrest­ed.

At trial, appellant moved to suppress his statements to the police. Appellant characterized his “call my wife” statement as “an unambiguous and unequivocal as­sertion of his right to counsel during a custodial interview. Further, this request was ‘a demand’ and not ‘a question.’ The Commonwealth contended that appel­lant’s statement was a question that was inherently ambiguous and equivocal.

“After hearing argument, the trial court denied appellant’s motion to sup­press without further comment.

Appellant also moved the court to re­quire the commonwealth to stipulate that he had been convicted of a felony. Appel­lant sought to avoid a reference to the felony as a violent felony, because that would be unfairly prejudicial. The trial court granted the motion in part, ruling that the commonwealth could not tell the jury that the felony was murder, but that it could state that it was a violent felony.

The jury was told that appellant had been convicted of a violent felony but that this fact should not be used “for any other purpose in your deliberations.”

At the close of the commonwealth’s evi­dence, appellant moved to strike, arguing that the commonwealth did not prove he even possessed a weapon. The court de­nied the motion. Appellant presented no evidence and renewed the motion, which the court again denied.

The jury convicted appellant.

Motion to suppress

“[A]pplying the well-established legal principles articulated by prior Virginia appellate decisions, we hold that appel­lant failed to make a clear and unambig­uous invocation of his right to counsel. Neither of appellant’s statements – his initial request for police to call his wife and his later question to the detective in­quiring if he was going to call her – evi­denced an unambiguous request for coun­sel.” The first statement “did not indicate a clear invocation of his right to counsel because a reasonable officer would not know with clarity that appellant wanted to have an attorney present for his inter­rogation.

“Rather, appellant’s question could have indicated that he wanted his wife to call a lawyer so that a lawyer could be present at his interrogation, or it could have indicated that he wanted to notify a lawyer that he faced future legal issues, or it could have indicated that he want­ed a lawyer to assist him at some future stage in the legal proceedings.

“Appellant’s request to call his wife to have her call his attorney did not clear­ly and unambiguously indicate that he wanted his wife to call the attorney in order for counsel to be present for the in­terrogation. …

“Appellant’s second statement, ‘You’re gonna make the phone call,’ presented the same ambiguity. … To invoke the right to counsel at interrogation, ‘a suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel.’” Appellant did not do so. The trial court correctly denied the motion.

Sufficient evidence

Two people living near the scene re­ported gunshots shortly after midnight. One saw a man in a group of three fir­ing a gun into the air. An exterior video showed three men in the area, running for the apartment building about 12:05 a.m. One individual entered. The video recorded inside the building, by appel­lant’s admission, depicted him holding a black object next to his thigh.

“This occurred shortly after shots were fired on a street nearby. Considering the totality of the evidence, a rational fact finder could have concluded that the ob­ject in appellant’s hand as he entered the apartment building was a firearm. Thus, this Court cannot say on appeal that this determination was plainly wrong or with­out evidence.”

Stipulation

“[W]e note that appellant’s motion for stipulation was granted in part – the Commonwealth was prohibited from in­troducing evidence of his actual prior con­viction for second-degree murder. Rather than allowing the Commonwealth to in­troduce the prior offense, the trial court allowed appellant to stipulate that he had been convicted of a prior violent fel­ony.

“Because this stipulation was clearly less prejudicial than the admission of his actual prior offense, we reject appellant’s argument that the stipulation was undu­ly prejudicial. Second, Virginia appellate courts have consistently held that, where there are concerns that evidence may be unfairly prejudicial, a limiting or clarify­ing instruction is the appropriate remedy. …

“[W]hen the stipulation was read to the jury and admitted into evidence, the court instructed the jury that ‘[t]he Common­wealth has offered this stipulation into evidence for the sole purpose of proving that [appellant] was convicted of the pri­or offense. You should not use this fact for any other purpose in your deliberations.’ “A jury is presumed to follow the instruc­tions given it; thus we conclude that any undue prejudice was cured by the court’s instruction. Therefore, the trial court did not err in denying in part appellant’s mo­tion for stipulation.”

Affirmed.

Jones v. Commonwealth, Record No. 1359-18-4, Jan. 14, 2020. CAV (Malveaux) from Alexandria Cir. Ct. (Kelmer). David J. Kiyonaga for appellant, A. Anne Lloyd for appellee. VLW 020-7-007, 6 pp. Unpub­lished.