Stevens v. Commonwealth of Va..

• Decision Date: 01 February 2011
• Docket Number: Record No. 0266–09–3.
• Citation: 57 Va.App. 566,704 S.E.2d 585
• Parties: Roger Lee STEVENS, s/k/a Roger Lee Stephensv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 566

704 S.E.2d 585

Roger Lee STEVENS, s/k/a Roger Lee Stephens

v.COMMONWEALTH of Virginia.

Record No. 0266–09–3.

Court of Appeals of Virginia, Richmond.

Feb. 1, 2011.

Larry Gott, Danville, for appellant.Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON REHEARING EN BANC

PETTY, Judge.

Roger Lee Stevens appeals from his convictions for robbery, conspiracy to commit robbery, malicious bodily injury, two counts of murder, and several counts of using a firearm in the commission of various felonies. Before a panel of this Court, Stevens argued that the trial court erroneously denied his motion to suppress incriminating statements he made to police during a custodial interrogation after he requested counsel. Stevens contended that the police should have ceased questioning him because he claims to have unambiguously and unequivocally invoked his right to have counsel present during custodial interrogation as set forth in 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).

In an unpublished opinion, a divided panel of this Court reversed Stevens' convictions and remanded for a new trial. See Stevens v. Commonwealth, No. 0266–09–3, 2010 WL 2482325, at *5, 2010 Va.App. LEXIS 244, at *18 (Va. Ct.App. June 22, 2010). We subsequently granted the Commonwealth's petition for rehearing en banc and stayed the panel decision. ¹ On rehearing en banc, we hold that Stevens' statement was ambiguous because the circumstances leading up to Stevens' statement made it unclear whether Stevens had requested the presence of an attorney during custodial interrogation, or whether he had simply expressed his desire to have an attorney appointed to represent him at trial. Because of this ambiguity, we conclude that the police were permitted to ask Stevens limited questions solely for the purpose of clarifying the statement. Accordingly, we hold that the police did not violate Stevens' right to counsel under Miranda, and, therefore, we affirm his convictions.

I. BACKGROUND

On July 22, 2008, the appellant, Roger Lee Stevens, was arrested for his involvement in a deadly shooting that occurred during a drug transaction. After his arrest, Investigators Chaney and Nicholson of the Pittsylvania County Sheriff's Department questioned Stevens at a police station in Chatham, Virginia. They began the interrogation by carefully reading Stevens his Miranda rights. Stevens waived those rights ² and answered the investigators' questions for approximately two hours. During this time, Stevens never asked for counsel. After this session concluded, Stevens was transferred to an unidentified jail; he did not remain in Chatham because of a need to keep him separate from another person in custody at that location.

Apparently, the magistrate before whom Stevens had appeared during the night had erroneously ordered Stevens to be transported to the juvenile and domestic relations district court for his original appearance and appointment of counsel.³ Based on the magistrate's order, authorities transferred Stevens to a holding cell at that court even though the proper court for this advisement was the general district court, which was not sitting that day. Because of this mix-up, the advisement was continued until the next day that the general district court was to sit.

When he arrived for work that morning, Investigator Chaney learned that Stevens wanted to talk with him again. Accordingly, Chaney went to the holding cell and engaged in a “basic conversation” with Stevens. Stevens asked Chaney if he could leave the cell to see his child at home. Chaney explained that Stevens could not leave because he was in police custody for several serious crimes. He further explained that he would come visit Stevens later to talk with him some more.

Later that day, Chaney and Nicholson had Stevens returned to the police department so they could speak with him further. Their conversation began as follows ⁴:

Chaney: You wanna, you want to talk to us some more?

Stevens: Ya'll want to talk to me or something?

Chaney: Yeah. You want to talk to us?

Stevens: Ya'll want to talk to me? I ain't doing nothing [inaudible] sitting.

Chaney: Well reason we ask is cause we brought you back over that, this morning you asked for me, and we brought you back over here the reason I'm asking you is because your rights still apply. You still understand your rights?

Stevens: I have the right to remain silent.

Chaney: Everything that I read you last night, do you still understand your rights?

Stevens: Mm-hmm.

Chaney: You can have a lawyer present if you want one.

Stevens: I want, that's what I need. I want to know what's, you know what I'm saying.

Chaney: You can stop answering at any time.

Stevens: That's what I want, a lawyer, man.

Chaney: You do want a lawyer.

Stevens: I mean, that's what I thought they brought me up here for today.

Nicholson: Well they gonna appoint you a lawyer. I mean you gonna get a lawyer.

Chaney: The question is do you want a lawyer before you talk to us again or are you willing to talk to us?

Stevens: I mean I'll listen to ya but you already said if I could stop if I wanted.

Chaney: Stop answering at any time you want to.

Stevens: I'll listen to what you got to say. If you want—if I say something—if I feel I don't want to say no more y'all done told me I can stop.

Nicholson: Yes sir.

Chaney: Stop anytime you want.

Nicholson: No problem at all with that.

Chaney: All you got to say is I don't want to say—I don't want to talk to you no more. That's all you gotta say.

After this exchange, Stevens made incriminating statements to Chaney and Nicholson, which he later sought to suppress. In support of his motion to suppress, Stevens argued that he unambiguously and unequivocally invoked his Fifth Amendment right to have counsel present during questioning, and thus all further questioning should have ended immediately. In contrast, the Commonwealth argued that Investigators Chaney and Nicholson reasonably construed Stevens' statement as ambiguous in light of the full circumstances surrounding Stevens' aborted advisement and subsequent detention. Thus, the Commonwealth contended that the investigators were permitted to clarify the ambiguity. The trial court denied Stevens' motion and admitted the incriminating statements made to police. Stevens was subsequently convicted of numerous crimes. This appeal followed.

II. ANALYSIS

As he did before the trial court, Stevens argues on appeal that he made an unambiguous and unequivocal request to have counsel present during custodial interrogation. Accordingly, he contends that police questioning should have immediately ceased after he said, “That's what I want, a lawyer, man.” ⁵ We disagree.

We view the facts “in the light most favorable to the Commonwealth,” the prevailing party below, Carter v. Commonwealth, 280 Va. 100, 104, 694 S.E.2d 590, 593 (2010), and grant it “all inferences reasonably deducible therefrom,” Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). However, whether a defendant invoked his right to have counsel present during custodial interrogation presents a mixed question of law and fact. Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). Hence, “ ‘the determination of what [the defendant] actually said is a question of fact we review only for clear error,’ ” but “ ‘[w]hether those words are sufficient to invoke a right to counsel is a legal determination that we review de novo.’ ” Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002) (quoting United States v. Uribe–Galindo, 990 F.2d 522, 523 (10th Cir.1993)).

[704 S.E.2d 589 , 57 Va.App. 573]

The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. To prevent such compulsion, the United States Supreme Court has “established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures' of custodial interrogation, including the right to have counsel present” during custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624); see also Edwards, 451 U.S. at 485–86, 101 S.Ct. at 1885 (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.”). Thus, as the Supreme Court has recognized, “to have counsel present during a custodial interrogation is an axiom of American law.” Zektaw v. Commonwealth, 278 Va. 127, 135, 677 S.E.2d 49, 53 (2009) (emphasis added).

Once an accused requests to have counsel present during custodial interrogation, the accused “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.” Edwards, 451 U.S. at 484–85, 101 S.Ct. at 1885. Thus, the police “ ‘may not reinterrogate an accused in custody if he has clearly asserted [this] right to counsel.’ ” Arizona v. Roberson, 486 U.S. 675, 680, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704 (1988) (emphasis added) (quoting Edwards, 451 U.S. at 485, 101 S.Ct. at 1885). However, nothing in Edwards prevents police from questioning a suspect who does “not wish to have a lawyer present ” during questioning. Davis v. United States, 512 U.S. 452, 460, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994) (emphasis added).

It is not always clear, however, whether a suspect has invoked his right to have counsel present during custodial interrogation, and thus has asked for “the particular sort of lawyerly assistance that is the...