Burrell v. Commonwealth of Va.., Record No. 0488–10–1.

• Decision Date: 28 June 2011
• Docket Number: Record No. 0488–10–1.
• Citation: 710 S.E.2d 509,58 Va.App. 417
• Parties: Joel Aaron BURRELLv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 417

710 S.E.2d 509

Joel Aaron BURRELL

v.COMMONWEALTH of Virginia.

Record No. 0488–10–1.

Court of Appeals of Virginia, Chesapeake.

June 28, 2011.

From the Circuit Court of the City of Hampton, Louis R. Lerner, Judge.¹Ben Pavek (Office of Public Defender, on briefs), for appellant.Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: ELDER, PETTY and ALSTON, JJ.

OPINION

PETTY, Judge.

Appellant, Joel Aaron Burrell, was convicted of possession of cocaine with intent to distribute. Burrell argues the trial court erred when it (1) denied a motion to suppress statements he made in response to police questioning after he claims to have invoked a right to counsel and (2) concluded that the evidence was sufficient to prove he intended to distribute the cocaine in his possession. For the following reasons, we disagree and affirm.

I. BACKGROUND

We view the evidence in the light most favorable to the Commonwealth, and grant to it all reasonable inferences fairly deducible from that evidence. Brown v. Commonwealth, 56 Va.App. 178, 180, 692 S.E.2d 271, 272 (2010). So viewed, the facts are that the police entered a house in Hampton where Burrell lived with his girlfriend and her children to execute a search warrant. Upon entering the house, the police detained all the people present, namely, Burrell and the children. They then searched the house for drugs and other items related to their distribution. In a bedroom they found three bags of cocaine collectively weighing about 12.1 grams, a digital scale, plastic bags, and an “owe sheet” detailing amounts of money presumably owed by several people. When the police entered the house, they saw Burrell leaving the bedroom.

After the police discovered these items, the lead police officer, Detective Hake, questioned Burrell in another room. Before questioning him, Detective Hake read Burrell his Miranda rights, which Burrell acknowledged he understood. In response to questions posed by Hake, Burrell told Hake that he lived at the house and that he sometimes slept in the bedroom along with his girlfriend. Hake then informed Burrell that they had discovered cocaine in the bedroom and asked if it belonged to him.

According to Hake, in response Burrell “stated that certain questions he didn't want to answer without a lawyer.” Attempting to clarify the remark, Hake asked Burrell if he didn't want to speak to him at all without a lawyer, and Burrell “stated no, there was just certain questions he didn't want to answer.” Hake then asked Burrell for his girlfriend's phone number. When Burrell asked Hake why he needed it, Hake explained that he would need to question his girlfriend about the cocaine found in her bedroom. Thereafter, Burrell admitted to Hake that the cocaine belonged to him. After Burrell made this admission, Detective Hake immediately repeated his earlier clarification, asking Burrell whether he wanted to speak to him without a lawyer. Burrell “stated that he did.” Nevertheless, Detective Hake asked for a third time whether Burrell “was sure he wanted to speak to [Hake] without a lawyer present,” and Burrell repeated that he did. Burrell then reiterated to Detective Hake that the cocaine was his, and he explained that he was not lying to protect his girlfriend. Burrell also admitted the digital scale belonged to him, but he denied distributing cocaine and using the scale for that purpose.

Before trial, Burrell brought a motion to suppress the statements he made to Detective Hake, arguing that he had invoked a right to have counsel present before answering questions about the cocaine and that Detective Hake improperly continued to interrogate him thereafter. In contrast, the Commonwealth argued that Burrell's request for counsel was ambiguous or equivocal because it left unclear what questions he would not answer without counsel present. At the conclusion of the motion, the trial court said:

Well, the major problem here is that the defendant introduced the qualifier. There has been no question throughout this case that he was the one that said there were certainly questions that he would answer. Detective Hake asked him after he said that and he said there are just certain questions I don't want to answer. I will talk to you but certain ones I won't. Detective Hake didn't ask him any more about the cocaine. He switched subjects after that.

Thus, the court denied Burrell's motion to suppress the statements he made to Detective Hake.

The Commonwealth admitted these statements, along with the items discovered in the bedroom, into evidence at trial. Further, another police officer, Detective Roberts, testified without objection that the amount of the cocaine found in the bedroom and the other items recovered in the bedroom—the digital scales, baggies, and the owe sheet—all demonstrated that Burrell's possession of cocaine was inconsistent with personal use. Finally, the Commonwealth properly admitted into evidence a certificate of analysis, along with the testimony of a state forensic chemist, confirming that the police recovered about 12.1 grams of solid, homogenous material containing cocaine. The chemist testified that she tested a small amount of the substance in each bag recovered from the bedroom and determined that the portion tested was cocaine. At the close of the Commonwealth's evidence, Burrell made a motion to strike, arguing that the Commonwealth failed to prove that the entire 12.1 grams of the solid, homogenous substance found in the bedroom was cocaine, because the chemist had only tested a small portion of the substance in each baggie. The trial court denied this motion, and did so again when Burrell renewed the motion at the close of all the evidence. After denying the motion to strike at the close of the evidence, the trial court, sitting without a jury, found Burrell guilty of possession of cocaine with intent to distribute in violation of Code § 18.2–248. This appeal followed.

II. ANALYSIS

A. Right to Counsel

Burrell first assigns error to the trial court's decision denying his motion to suppress. Burrell argues the trial court should have suppressed the statements he made to Detective Hake after he told Hake that “certain questions he didn't want to answer without a lawyer.” He suggests that his reference to counsel made it clear to Detective Hake that he was unwilling to answer any questions about the cocaine found in the bedroom without a lawyer present, and therefore the trial court should have suppressed the statements he made thereafter in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Burrell further claims that the trial court “made the [factual] finding that [he] stated he did not want to answer any questions in reference to the cocaine” without an attorney. In response, the Commonwealth argues that Burrell's reference to counsel was an ambiguous or equivocal request, and, thus, the trial court appropriately denied his motion.

Because Burrell did not make it objectively clear what questions Detective Hake could not ask, we agree with the Commonwealth. As we explain in further detail below, we hold that when a suspect makes a statement during a custodial interrogation that requests the presence of counsel before answering some questions, while also indicating a willingness to answer other questions without the presence of counsel, the statement must make it clear to a reasonable police officer what questions the suspect is unwilling to answer for the statement to effectively invoke the suspect's Miranda–Edwards right to counsel.² If the suspect fails to do this, the police may continue questioning him, and his subsequent statements remain admissible.³

Whether a defendant has invoked his right to have counsel present during a custodial interrogation presents a mixed question of law and fact. Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). We accept the trial court's finding regarding what a defendant actually said, Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002), unless it is “ ‘plainly wrong or without evidence to support it,’ ” Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999) (quoting Code § 8.01–680; King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977)). However, whether the defendant's statement effectively invoked a right to counsel is a legal question that we review de novo. Redmond, 264 Va. at 327, 568 S.E.2d at 698.

We must first confront Burrell's claim that the trial court, in announcing its decision, “made the [factual] finding that [he] stated he did not want to answer any questions in reference to the cocaine.” This claim conflates the distinct factual and legal questions before us. The trial court's determination of the words Burrell used is a factual finding that generally binds us on appeal. Id. In that regard, the trial court implicitly accepted Detective Hake's testimony when it expressly found that Burrell said there were “certain questions” he would not answer without a lawyer.⁴ Thus, that factual finding binds us on appeal. However, the legal effect of the words used by Burrell is a question we review de novo. Id. Therefore, assuming without deciding that Burrell has correctly characterized the trial court's statement as a conclusion regarding the meaning of Burrell's statement, that conclusion is irrelevant because it is a legal determination to which we give no deference. See id. Instead, we must interpret Burrell's words anew to determine whether they effectively invoked his right to have counsel present during custodial interrogation and thus rendered his subsequent statements inadmissible.

The United States Constitution prohibits the police from compelling a suspect to testify against himself. U.S. Const. amend. V. To protect...