Appellant knowingly waived right to silence

Where appellant, during the course of a custodial interview, said “Imma stop talking now,” the trial court correctly refused to suppress his statements made after he later continued his conversation with the police.

Overview

Appellant Thomas was a suspect in a robbery-murder investigation. Police took Thomas to the station after executing a search warrant at his home. Detective Godwin advised Thomas of his Miranda rights and questioned him. Godwin felt the interview was unproductive and ended it after about an hour by asking Thomas if he would provide a DNA sample. Thomas agreed.

Two other detectives, Russell and Bridges, entered the room. They questioned Thomas while taking the sample and after they completed it. 

“After several moments, Thomas stated, ‘Imma stop talking.’ Detective Russell immediately stood up and asked him, ‘Listen to me. Did we treat you right?’ Thomas nodded affirmatively. Detective Russell continued, ‘Nobody mistreated you, right? We gave you every opportunity to talk to us, is that fair?’ Thomas nodded yes again. 

“Detective Russell asked, ‘Okay, so you can’t say we didn’t try, right?’ The detective paused until Thomas answered, ‘Yes.’ Detective Russell then stated, ‘Okay, I’m asking, I want to be fair, if there’s something you need me to correct, let’s do it.’ Thomas was silent and nonresponsive. Detective Russell then asked, ‘Okay, we’re basically friends here, right? It’s just a job, right? Can you shake my hand?’ and put his outstretched hand in front of Thomas, who did not respond. 

“Detective Russell asked, ‘You can’t do that for me?’ When Thomas did not respond, Detective Russell patted him on the arm. …

“Immediately afterward, as Detective Russell was on his way out of the room, he turned and asked Thomas if he knew what charges were pending against him. Thomas did not respond. The detective turned toward Thomas and said, ‘What do you think it is?’ Thomas was silent. Detective Bridges suggested, ‘Robbery?’ Thomas flicked his hand and said ‘Robbery.’

“Detective Russell said, “Robbery, use of a firearm, first-degree murder, and use of a firearm.” Detective Russell then asked if Thomas was aware of the penalties for those crimes. Thomas said nothing and rubbed his face. Detective Russell said, ‘I’ll be more than glad to explain it if you’d like me to.’ Thomas nodded yes. 

“Detective Russell stated the penalties: ‘First-degree murder carries a life sentence. Life. Robbery is five to forty. Of course, they’re gonna ask for a jury, because of this guy’s, you know, how he was. And the jury sentences you, you’re twenty, the other young man is seventeen, he’s going to catch a break.’

“Thomas immediately asked Detective Russell why the other suspect would catch a break’ and if it was because he was a juvenile. Detective Russell replied, ‘Well, he talked.’ Detective Bridges said, ‘He got the story. You don’t think he should get as much of a break?’ Shortly afterward, Thomas admitted his involvement in Long’s killing.”

Thomas moved to suppress his statements, arguing that the police persisted in questioning him after he invoked his right to remain silent. The trial court denied the motion. Thomas appealed.

Discussion

“[T]here is no question that Thomas was in custody. The question is whether his incriminating statements were the result of interrogation and, if so, whether he voluntarily waived his right to silence before making them. … 

“[I]t is well settled that even if invoked, the Miranda right to silence can ‘be waived by the suspect if the waiver is made knowingly and intelligently.’ …

“An individual’s relinquishment of his right to silence must be a voluntary, free, and deliberate choice and not the result of police intimidation, coercion, or deception. … Additionally, any waiver must be made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. … 

“We determine whether both prongs of this test are met by evaluating the totality of the circumstances surrounding the interrogation. … ‘Factors relevant to this determination include the defendant’s age, intelligence, mental and physical condition, background and experience with the criminal justice system, the conduct of the police, and the circumstances of the interview.’ Thomas relies upon the last two factors and argues that despite his assertion of his right to silence, the detectives continued to interrogate him in order to obtain incriminating evidence. …

“The questions posed to Thomas by Detectives Russell and Bridges after he said ‘Imma stop talking now’ were not of the variety that police should know are reasonably likely to elicit an incriminating response. 

“Likewise, telling a suspect about the charges filed against him and their corresponding penalties would not reasonably call for an incriminating response. 

“Neither were the detectives’ statements regarding the minor co-defendant coercive or deceitful. Pursuant to current Code § 19.2-291.1, the Commonwealth requires that adult defendants be both tried and sentenced by a jury. Conversely, although juvenile offenders may be tried by jury, they may only be sentenced by a judge. …

“Detective Russell simply explained that sentencing distinction to Thomas when Thomas re-engaged in conversation with the officers. Instead of remaining silent, Thomas re-opened the conversation with Detective Russell when he asked why his co-defendant would likely get a lesser sentence and then inquired if it was because the co-defendant was a juvenile.

“Thomas clearly indicated his waiver of the right to remain silent by his voluntary verbal interactions with the detectives. The totality of the circumstances reveals that Thomas had already been informed of his right to counsel and his right to remain silent. 

“Further, Thomas confirmed to Detective Godwin that his Miranda rights were communicated to him on a previous occasion in police custody and that he was familiar with them.

“When all the facts in this case are considered in conjunction with one another and in the light most favorable to the Commonwealth as the party that prevailed in the circuit court, we conclude that Thomas was not subject to the type of police conduct that would compel a reasonable person to incriminate themself in violation of the Fifth Amendment and Thomas’s voluntary communication with police demonstrated a knowing, intelligent, and voluntary waiver of any previously invoked right to silence.”

Affirmed.

Thomas v. Commonwealth, Record No. 0176-20-2, Dec. 1, 2020. CAV (Humphreys) from Richmond City Cir. Ct. (Hairston). Daniel W. Hall for appellant, Rosemary V. Bourne for appellee. VLW 020-7-223, 16 pp. Published.