Com. v. Hilliard

• Decision Date: 09 June 2005
• Docket Number: Record No. 042204.
• Citation: 613 S.E.2d 579
• Parties: COMMONWEALTH OF VIRGINIA v. Curtis Darnell HILLIARD.
• Court: Virginia Supreme Court

613 S.E.2d 579

COMMONWEALTH OF VIRGINIA v. Curtis Darnell HILLIARD.

Record No. 042204.

Supreme Court of Virginia.

June 9, 2005.

COPYRIGHT MATERIAL OMITTED

Steven A. Witmer, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), Richmond, for appellant.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, on brief), Richmond, for appellee.

Present: All the Justices.

KEENAN, Justice.

In this appeal, we consider whether the Court of Appeals erred in holding that a defendant's motion to suppress an incriminating statement should have been granted because he made the statement in response to police questioning conducted after he invoked his right to counsel.

Curtis Darnell Hilliard was tried in the Circuit Court of the City of Richmond on charges of murder, in violation of Code § 18.2-32; use of a firearm in the commission of murder, in violation of Code § 18.2-53.1; maliciously shooting into an occupied vehicle, in violation of Code § 18.2-154; and discharging a firearm within 1,000 feet of a school, in violation of Code § 18.2-280. Before trial, Hilliard filed a motion to suppress a statement he gave to the police, claiming a violation of his Fourth, Fifth, and Sixth Amendment rights, as well as certain rights under the Constitution and Code of Virginia. The circuit court denied the motion. A jury convicted Hilliard of all charges and the circuit court sentenced him to a term of 61 years' imprisonment.

On appeal, after a panel of the Court of Appeals affirmed the convictions in an unpublished opinion, the Court granted Hilliard's petition for a rehearing en banc, stayed the mandate of its earlier decision, and reinstated the appeal. On rehearing en banc, the Court of Appeals affirmed in part, and reversed in part, the circuit court's judgment and remanded the case to the circuit court for further proceedings. Hilliard v. Commonwealth, 43 Va.App. 659, 677-78, 601 S.E.2d 652, 661 (2004). The Court held that Hilliard made a clear and unequivocal request for counsel during the course of a police interrogation, and that the circuit court erred in refusing to suppress his later admission that he had been present at the scene of the crime. Id. at 675, 601 S.E.2d at 660. The Commonwealth appeals, and Hilliard assigns cross-error.

The facts relevant to the motion to suppress are undisputed. In July 1999, Anthony Robinson, Jr. was shot and killed. Hilliard was arrested for Robinson's murder and, while in police custody, was questioned by Detectives Levin White and Martin Kochell of the City of Richmond Police Department.

Detective Kochell advised Hilliard of his Miranda rights and asked him to sign a waiver form indicating that he understood his rights, including the right to have an attorney present during police questioning. Immediately after being informed of his rights, and before he signed the form, Hilliard made his first reference to an attorney, asking, "Can I have someone else present too, I mean just for my safety, like a lawyer like y'all just said?" Detective White replied, "That's up to you. Like [Detective Kochell] said, all we're doing today is just trying to get your side of the story."

Detective White informed Hilliard that they could not continue their discussion until he signed the waiver form. Hilliard executed the form.

A few minutes later, in response to questioning by the detectives, Hilliard made his second alleged request for an attorney, stating:

I need to say that ... I'm not saying that I know anything. I'm not saying that I know the person. You know what I'm saying? The only thing, ... like I said, I would like to have somebody else in here because I may say something I don't even know what I am saying, and it might f[ ] me up, might jam me up in some incidents, and I don't want that to happen, man.

The detectives reassured Hilliard that they were not trying to "jam him up" and continued the interview.

About an hour later, Hilliard made his third alleged request for an attorney. In response to Detective White's request that Hilliard tell his "side of the story," the following exchange occurred:

HILLIARD: Can I get a lawyer in here? DETECTIVE WHITE: Do you want to do that?

HILLIARD: I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up. And I'll tell you everything that I know. This is my word.

DETECTIVE WHITE: Okay. That's fine.

DETECTIVE KOCHELL: That's fine.

HILLIARD: I'm not saying that I will say anything other or just because he's in here. I just want to, you know, make sure I have ... I'd feel more comfortable.

DETECTIVE KOCHELL: That's not a problem. We tried to provide you with a comfortable atmosphere here HILLIARD: I will say, I will go as far as to say this. Probably what you all got in [the case file] ain't nowhere near.

...

DETECTIVE WHITE: Anywhere near ... of what we know of why it happened?

HILLIARD: Yeah.

DETECTIVE WHITE: Well, that's why we want to hear from you, because we know there's a bigger picture there. Okay? You know what the problem is, Curtis, is that you got caught up in it.

HILLIARD: Yeah, I did. I was there. I'm going to just say that, I was there. But before I say anything else, I mean, I already talked to you before we go to court.

After clarifying that Hilliard had admitted being present at the crime scene, but that he wanted to consult with an attorney, Detective White ended the interview.

In his motion to suppress in the circuit court, Hilliard argued that he had requested an attorney on three separate occasions, and that the detectives should have ceased questioning him following his first request. After viewing a videotape recording of the police interview, the circuit court denied Hilliard's motion, concluding that Hilliard did not make an unequivocal request for counsel. The circuit court also held that Hilliard's admission that he was present at the crime scene was a volunteered statement, rather than a response to a question posed by the detectives.

The Court of Appeals, en banc, reversed the circuit court's judgment, holding that Hilliard's third alleged request for counsel was unequivocal. Hilliard, 43 Va.App. at 673, 601 S.E.2d at 659. The Court reviewed the videotape of Hilliard's interrogation and concluded that although his first two statements "did not express a clear and unequivocal desire for counsel," his third and final request did, and the police immediately should have ceased the interrogation. Id. at 671, 601 S.E.2d at 658. The Court further held that Hilliard's incriminating statement, that he was present at the crime scene, was the result of express questioning by the detectives after he had invoked his right to counsel. Id. at 675, 601 S.E.2d at 660.

On appeal to this Court, the Commonwealth argues that the Court of Appeals applied an incorrect standard of review and improperly considered de novo certain historical facts and subjective aspects of the case. According to the Commonwealth, the Court of Appeals erroneously conducted a "factual" review of the videotape instead of relying on the circuit court's conclusions drawn from the videotape, which were not plainly wrong. The Commonwealth also asserts that the Court of Appeals erred in considering whether the detectives subjectively understood Hilliard's comments as invoking his right to counsel.

With regard to the merits of the circuit court's holding, the Commonwealth argues that the Court of Appeals erred in concluding that Hilliard ultimately invoked his right to counsel during the police interrogation. The Commonwealth asserts that Hilliard's statements were an expression of his "concern about the wisdom of continuing to speak," but did not constitute a clear invocation of his right to an attorney. The Commonwealth also contends that the Court of Appeals erroneously considered Hilliard's statement, "I already have a lawyer," as a factor in determining whether he had invoked his right to counsel.

In response, Hilliard argues that the Court of Appeals properly reviewed the videotaped interview as part of its duty to conduct a de novo review of the circuit court's legal conclusion that Hilliard's statements were not sufficient to invoke his right to counsel. He further asserts that the Court of Appeals did not commit reversible error in referring to the detectives' subjective beliefs, because the Court did not decide the case based on those beliefs but correctly applied an objective test.

Addressing the merits of the circuit court's holding, Hilliard argues that the Court of Appeals correctly concluded that his third and final request was a clear invocation of his right to counsel. However, asserting cross-error, Hilliard contends that the Court erred in refusing to hold that his two prior statements were similarly unequivocal. He asserts that in each instance, his comments objectively demonstrated that he was invoking his right to counsel, and that the detectives should have ceased questioning him after his first reference to the presence of an attorney.

In resolving these issues, we apply established constitutional principles. The right of a criminal suspect to have an attorney present during custodial interrogation was first articulated by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court held that before interrogating a suspect who is in police custody, law enforcement officers must inform the suspect of certain rights, including the right to the presence and assistance of counsel. Id. at 471. If the suspect waives his Miranda rights, the police are free to begin questioning him; however, if the suspect changes his mind during the interrogation and requests the assistance of counsel, the interrogation must cease until an attorney has been made available to the suspect or the suspect reinitiates the interrogation. Davis v. United States, 512...