Com. v. Redmond

• Citation: 568 S.E.2d 695,264 Va. 321
• Decision Date: 13 September 2002
• Docket Number: Record No. 012447.
• Parties: COMMONWEALTH of Virginia v. Torie Devon REDMOND.
• Court: Supreme Court of Virginia

568 S.E.2d 695

264 Va. 321

COMMONWEALTH of Virginia v. Torie Devon REDMOND.

Record No. 012447.

Supreme Court of Virginia.

September 13, 2002.

Leah A. Darron, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellant.

Edward W. Webb (Office of the Public Defender, on brief), for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, S.J.

Opinion by Justice LEROY R. HASSELL, SR.

JUSTICE HASSELL announced the judgment of the Court, and delivered an opinion in which CHIEF JUSTICE CARRICO and SENIOR JUSTICE COMPTON join.

I.

In this appeal, we consider whether the Court of Appeals of Virginia erred in holding that a criminal defendant clearly and unambiguously invoked his right to counsel during a custodial interrogation.

II.

A grand jury in the City of Virginia Beach indicted Torie Devon Redmond for first-degree murder as defined in Code § 18.2-32. In a pretrial motion to suppress, the defendant alleged that a confession he had made during a custodial interrogation was inadmissible because he claimed that he had invoked his right to counsel. The circuit court denied the defendant's motion and at a trial the jury convicted him of first-degree murder and fixed his punishment at 60 years imprisonment. The circuit court entered a judgment confirming the verdict, and the defendant appealed to the Court of Appeals.

A panel of the Court of Appeals, in an unpublished opinion, held that the defendant made a clear and unambiguous request for counsel during the custodial interrogation and, therefore, the circuit court erred in denying his motion to suppress the confession. Redmond v. Commonwealth, Record No. 0762-00-1, 2001 WL 537065 (May 2001). Upon a rehearing, the Court of Appeals, en banc, in an unpublished opinion reversed the judgment of the circuit court and remanded the case for a new trial. Redmond v. Commonwealth, Record No. 0762-00-1 (October 2001). The Commonwealth appeals.

III.

In May 1999, Virginia Beach City police officers arrested the defendant for the murder of Gattis Bowling, Jr. Detective Christopher C. Molleen interrogated the defendant, who was in custody, in an interview room at the police station. After Molleen made some prefatory remarks to the defendant, Molleen advised the defendant of his Miranda rights, and the defendant stated that he understood those rights.

During the interrogation, which was recorded on a videotape that was made a part of the record, the following exchange occurred:

"DETECTIVE MOLLEEN: I'm telling you. I could not slap these cuffs on you if I didn't have enough evidence to prove this crime. The big thing is, you're the one that's in trouble. Okay? I ain't going to take no notes because we're sitting talking about it. I don't want you to put your foot in your mouth and mess the rest of your life up. But you're the only one here that can do something good for yourself. If you can't admit that you made a mistake, if you can't admit that things went awry, there ain't nobody going to look out for you.... This ain't the first time this has ever happened. Something innocent started off like that and then it just turned bad. Maybe not exactly your fault. Maybe not exactly his fault. Things just go bad sometimes. The point is if you can't admit that something bad happened, then nobody should help you. Maybe, you know, maybe you are a monster. I don't know. Okay. But you have to tell the truth and if you don't try to hide something, I'm going to prove you're hiding it. And, ultimately, you know, you're the one that's going to suffer the consequences, not me.

"REDMOND: I don't want to seem arrogant or nothing like that.

"DETECTIVE MOLLEEN: I don't want, Torie.

"REDMOND: These are some pretty deep charges.

"DETECTIVE MOLLEEN: Listen to what I got to say. I don't think. I don't want you to seem arrogant. Okay. I don't want you to seem arrogant. I want you to do the best thing for yourself. And the best thing for yourself is you need to take some of the heat off your back. Yeah, they are very serious charges. This is the only opportunity you're ever going to talk and give your side. Period. This is . . .

"REDMOND: Can I speak to my lawyer? I can't even talk to lawyer before I make any kinds of comments or anything?

"DETECTIVE MOLLEEN: You can do anything you like, but I'm telling, I'm telling you like this. You have the freedom to do anything you want. You have the freedom to go to sleep right now if you want to do that. Okay? You have the freedom to sit here and talk to me. Okay? The point is and what I'm trying to tell you is, this is your opportunity; this is your time. There ain't tomorrow, there ain't later. Okay? There's not later. There is no later. And I'm trying, I'm trying to give you because you are a 24 year old man the opportunity to help yourself out a little bit. You got a lot of years to live. Okay. You got a lot of people probably around you who really care for you. A lot of people over in the area talked highly of you. A couple of detectives talked highly of you last night. Okay. And I don't think in my mind, and I can't really prove that you went over there with intentions of doing anything wrong. But sometimes bad things can happen."

Approximately two hours after Detective Molleen had initiated his interview of the defendant, another police officer, Detective Gallagher, entered the interrogation room and began to question the defendant about an unrelated robbery investigation. When Detective Gallagher began to question the defendant about this robbery, the defendant stated: "I would like to speak to a lawyer on this one." Detective Gallagher terminated his interrogation of the defendant.

IV.

The Commonwealth contends that the Court of Appeals erred by failing to approve the circuit court's "factual determination that the defendant did not unequivocally invoke his right to counsel." The Commonwealth argues that the circuit court made a factual determination that Redmond's statements did not reflect an unambiguous, unequivocal invocation of his right to counsel and that the Court of Appeals should have applied a clearly erroneous standard when reviewing the circuit court's ruling. Responding, the defendant asserts that his statements were sufficient to invoke his right to counsel.

A.

Initially, we observe that we disagree with the Commonwealth's contention that this Court must apply the clearly erroneous standard of review to determine whether the circuit court properly concluded that the defendant's assertion of his right to counsel was ambiguous. We are of opinion that the issue whether a defendant clearly requested an attorney during a custodial interrogation is a mixed question of law and fact and, as the Supreme Court has explained in a different context, this issue ultimately "calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate." United States v. Bajakajian, 524 U.S. 321, 336-37 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). This standard of review, which also has been described by the Supreme Court as independent appellate review, "tends to unify precedent and will come closer to providing law enforcement officers with a defined `set of rules'" that will, in most instances, enable these officers to honor an accused's constitutional rights. Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (quoting New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)); accord United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740 (2002)

; Cooper Industries Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).

However, in conducting its independent review, an appellate court must review the circuit court's findings of historical fact only for clear error, and the appellate court must give due weight to inferences drawn from those factual findings. See Ornelas, 517 U.S. at 699,

116 S.Ct. 1657,

134 L.Ed.2d 911; accord

Arvizu, 534 U.S. at 274,

122 S.Ct. at 751,

151 L.Ed.2d 740; Cooper Industries, 532 U.S. at 435,

121 S.Ct. 1678,

149 L.Ed.2d 674; Bajakajian, 524 U.S. at 336-37 n. 10,

118 S.Ct. 2028,

141 L.Ed.2d 314.

Thus, in applying independent appellate review of the mixed question of law and fact whether a defendant clearly requested an attorney during a custodial interrogation, "the determination of what [the defendant] actually said is a question of fact that we review only for clear error . ... Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo." United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir.1993).

B.

The Commonwealth argues that in making a determination whether the defendant made a clear assertion of his right to counsel, we must consider the police interrogation of the defendant in its entirety, including statements in the interrogation that the defendant made after his purported request for counsel. The Commonwealth contends that these subsequent statements indicate that the defendant knew how to clearly assert his right to counsel when he desired to do so.

We decline the Commonwealth's request to consider whether the defendant invoked his right to counsel by relying upon subsequent responses that he made to questions asked by police officers. As the Supreme Court has held, an accused's subsequent statements are not relevant to the question whether he invoked his right to counsel. A statement either asserts or fails to assert an accused's right to counsel. Smith v. Illinois, 469 U.S. 91, 97-98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam).

C.

The Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the police must inform a suspect, who is subject to a custodial interrogation, of his right to an attorney and his right to have that...