Ferguson v. Com.

• Decision Date: 22 July 2008
• Docket Number: Record No. 0748-06-3.
• Citation: 52 Va. App. 324,663 S.E.2d 505
• Parties: Michael Ray FERGUSON, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

663 S.E.2d 505

52 Va. App. 324

Michael Ray FERGUSON, Jr. v.COMMONWEALTH of Virginia.

Record No. 0748-06-3.

Court of Appeals of Virginia, Richmond.

July 22, 2008.

Glenn L. Berger(Berger & Thornhill, on brief), Altavista, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES and MILLETTE, JJ.

UPON A REHEARING EN BANC

FRANK, Judge.

Michael Ray Ferguson, Jr., appellant, was convicted of burglary, in violation of Code§ 18.2-91, and grand larceny, in violation of Code§ 18.2-95.¹On appeal, appellant contends that the trial court erred in denying his motion to suppress statements he made to police officers.Appellant argues that these statements were taken in violation of his Fifth Amendment right to counsel.A panel majority of this Court found that the trial court erred in denying appellant's motion to suppress, and reversed appellant's convictions.We granted a petition for rehearingen banc at the request of the Commonwealth, and stayed the mandate of the panel decision.Upon rehearing en banc,we reverse appellant's convictions for burglary and grand larceny.

BACKGROUND

On July 28, 2005, police officers stopped appellant's vehicle in the town of Altavista, which is located in Campbell County.These officers detained appellant in his vehicle until police officers from the neighboring jurisdiction responded to the scene, since appellant's vehicle matched the description of a vehicle involved in a breaking and entering of a home in Pittsylvania County.

When Investigator Hagerman of the Pittsylvania County Sheriff's Department arrived on scene, he asked appellant to go with the officers to the police department in the Town of Hurt in Pittsylvania County to "talk."This police department was located approximately one-half of a mile from where appellant's vehicle was stopped.Appellant drove his vehicle to the police department, followed by five police officers in their police vehicles.Three of those police officers, including Investigator Hagerman, accompanied appellant into the police department.²

The interview began at 1:25 p.m. Investigator Hagerman told appellant that they were interviewing him "in reference to a B & E that occurred at the Mark Worley residence" the previous day.³Investigator Hagerman then asked appellant for permission to search his vehicle.Appellant responded, "Nah, I want a lawyer, you know what I'm saying?"Investigator Hagerman replied, "Okay.But anyway...."Investigator Hagerman then read appellant his Miranda rights, and asked appellant to sign a document acknowledging that he had been read his Miranda rights.

Investigator Hagerman continued the conversation with appellant:

Hagerman: Michael, I'll just tell you what the offense was that we were talking about uh, do you want to go ahead and talk with me?

[Appellant]: Uh, my moma [sic] said that if I get in any more trouble I need a lawyer.

Hagerman: Okay, well, you don't have to talk to me.Let me talk to you now.

Investigator Hagerman did not ask appellant any questions regarding his request for counsel, but instead proceeded to talk to appellant about the instant offenses.

Hagerman: I've got positive identification of your car as it was pulling out of that house yesterday.Uh, there was about four thousand dollars worth of items stolen.Now, if you're willing to talk.If you want to go ahead and talk to me about this fine, if you don't, you know you're in trouble right now.Uh, I'm not, I'm not playing with you.I'm not, I'm—

[Appellant]: I understand.

Hagerman: [Unintelligible] straight out.Uh, the only hope you've got right now is to come clean as you can get.Let me try to get this stuff back that was stolen, that was taken, and uh, if, you know, you're on probation, I mean you need to think for yourself, you're twenty years old.[Unintelligible] saw the vehicle come down the hill right behind your car when you was [sic] pulling out spinning wheels.

[Appellant]: I don't nothing [sic] about that.

Hagerman: Okay.Where was [sic] you at yesterday?

[Appellant]: I was with my daddy up at the house.

Investigator Hagerman then obtained from appellant his address, his father's name, and whether any of his friends were with him the day before.Investigator Hagerman questioned appellant's alibi, saying, "[Y]ou think your daddy is going to say that you were home all day yesterday?"He also asked appellant about his employment status and how he got his money.

At that point, Investigator Hagerman told appellant that he was going to let him "sit here for a few minutes" and that "this concludes the interview."Investigator Hagerman then turned off the tape recorder, and told appellant that if he returned to Pittsylvania County in the future, Investigator Hagerman would put him in jail.Investigator Hagerman left the room with Deputy C.W. Glass, asking Chief Brian Marr of the Hurt Police Department to stay in the room with appellant.Chief Marr knew appellant, through appellant's mother, prior to his interaction with him that day.

For twenty minutes, Chief Marr and appellant sat in silence in the room.Appellant then stated either "I messed up" or "This is messed up."⁴Chief Marr testified that they then began to discuss appellant's family and his job status, and Chief Marr told appellant that "he needed to help his [sic] self."About 10 minutes of discussion occurred between appellant and Chief Marr before Chief Marr asked Investigator Hagerman to return to the room.At that time, Chief Marr began recording the second part of the interview.

The transcript of the second part of the interview indicates a portion of what appellant and Chief Marr discussed before the tape began recording.At one point, Chief Marr stated, "I've adivsed [sic] you that you can help yourself, okay."Later in the statement, Chief Marr acknowledged part of the earlier, unrecorded conversation, "[J]ust like I've told you before, we know more than what you're telling us....Help yourself out.You come [sic] this far man.You want me to help you and you want the investigator to help you."Chief Marr also alluded to promises made by himself and Investigator Hagerman that were not recorded, saying "The man [Investigator Hagerman] has already given you his word to help you.I've give [sic] you my word to help you."

Chief Marr read appellant his Miranda rights again, and "asked him would he speak with [Chief Marr] rather than Investigator Hagerman, would he feel more comfortable with that."Appellant indicated that he would.Appellant gave a statement regarding the offenses at approximately 2:00 p.m.

After making these statements, appellant was arrested.

The trial court determined that appellant made a clear and unambiguous request for counsel, and suppressed any statements made to Investigator Hagerman before he left the room.However, the trial court found that appellant"reinitiated the conversation" and "broke the silence."The trial court denied appellant's motion to suppress his statements made to Chief Marr.Appellant then entered a conditional plea of guilty pursuant to Code§ 19.2-254, preserving for appeal the alleged violation of his Fifth Amendment right to counsel.

This appeal follows.

ANALYSIS

Appellant contends that, after he"clearly asserted his right to counsel," police officers engaged in "coercive tactics," failed to provide counsel, and continued to interrogate him, in violation of the Fifth Amendment.⁵Appellant argues that, as a result, any statements he made must be suppressed.

On appeal from a trial court's ruling on a motion to suppress, the appellant must show that the trial court's decision constituted reversible error.SeeStanley v. Commonwealth,16 Va.App. 873, 874, 433 S.E.2d 512, 513(1993).We view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fairly deducible therefrom.SeeCommonwealth v. Grimstead,12 Va.App. 1066, 1067, 407 S.E.2d 47, 48(1991).We review the trial court's findings of historical fact only for clear error.SeeShears v. Commonwealth,23 Va.App. 394, 398, 477 S.E.2d 309, 311(1996).However, we review de novothe trial court's application of defined legal standards to the particular facts of a case.Ornelas v. United States,517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911(1996).

The Fifth Amendment Right to Counsel

"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, 1625-27, 16 L.Ed.2d 694(1966)."Commonwealth v. Hilliard,270 Va. 42, 49, 613 S.E.2d 579, 584(2005).The Court in Miranda"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."Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained."Missouri v. Seibert,542 U.S. 600, 608, 124 S.Ct. 2601, 2607-08, 159 L.Ed.2d 643(2004).

In Edwards v. Arizona,451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378(1981), the Court"established a second layer of prophylaxis for the Miranda right to counsel[,]"McNeil v. Wisconsin,501 U.S. 171, 176, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158(1991), holding that, "an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."E...