Opinion
Record No. 1576-02-1.
December 9, 2003.
Appeal from the Circuit Court of Northampton County, Glen A. Tyler, Judge.
William P. Robinson, Jr. (Robinson, Neeley Anderson, on brief), for appellant.
Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Humphreys and Senior Judge Hodges.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Pursuant to Code § 19.2-254 and Alford v. North Carolina, 400 U.S. 25 (1970), Karing Bethel Medley conditionally pled guilty to the charges of possession of cocaine with the intent to distribute and of transporting one ounce or more of cocaine into the Commonwealth with the intent to distribute. On appeal, he contends the trial judge erred in denying his motion to suppress statements he made to the state police. Based on the trial judge's finding that Medley did not waive his rights, we reverse the convictions.
I.
At the suppression hearing, State Police Officer Wade testified that he and other officers were assigned to monitor southbound traffic at the toll plaza of the Chesapeake Bay Bridge in Northampton County and to "intercept people smuggling guns and drugs . . . from the New York area . . . to the Tidewater area." While looking "for violations on the vehicles and . . . for any unusual responses or reactions [by the occupants] as they approach[ed] the toll booth," Officer Wade noticed the lettering on a license plate of an automobile approaching the toll booth. Based upon his knowledge that "certain letters are issued from the Eastern Shore area" for Virginia license plates, Officer Wade "assumed that this vehicle was from across the bay." He testified that he watched the driver approach the toll plaza where the officers stood and noticed that the driver's "eyes . . . were great big and round." He testified that these factors caused him to ask Trooper Hawkins to check the automobile.
When Medley, the driver, stopped to pay the toll, Trooper Hawkins told him "that his window tint appeared to be too dark under Virginia law and [that] it was also a violation to have any objects hanging from the mirror that could obstruct your view." Trooper Hawkins then directed Medley to stop his automobile at the side of the highway. When he asked for Medley's driver's license and registration, Medley said he had no identification. After the passenger indicated that the automobile was hers and gave Trooper Hawkins the registration, Trooper Hawkins walked Medley to his vehicle and contacted the dispatcher. While Trooper Hawkins and Medley waited for the report concerning Medley's driving status, Trooper Hawkins asked Medley about his travel destination. Medley said he and the passenger had intended to drive to New York from Norfolk, but they had an argument and were returning to Norfolk.
Special Agent Wendell questioned the passenger about her travel. After talking with her, Special Agent Wendell went to Trooper Hawkins, who was still sitting in his vehicle with Medley, and told him about his conversation with the passenger. Trooper Hawkins testified that he and Special Agent Wendell determined that the passenger's and Medley's replies were inconsistent. Officer Wade also talked to the passenger and told Trooper Hawkins her version of their travel, which contradicted Medley's version.
Officer Wade testified that he explained to the passenger that they intended to use a drug detection dog around the outside of her automobile because of her nervous actions and the inconsistent statements made by her and Medley. As Officer Wade guided the dog around the automobile, the dog alerted near a rear door. Based upon the alert, Officer Wade looked in the automobile and found, behind the driver's seat, a black plastic bag containing a box of cereal. Inside the box, he found "approximately 250 grams of what [he] believed to be . . . cocaine." Trooper Hawkins handcuffed Medley, and Special Agent Wendell handcuffed the passenger. Over Medley's objection, Officer Wade testified about the following statements the passenger made: that Medley promised her $200 for taking him to New York, that she noticed Medley had about $2,500 in a roll of money, that she left the automobile to go to the bathroom in New York while Medley was talking with some people, that she noticed the cereal box when they were driving through Delaware, and that Medley told her "his people gave it to him and not to worry about it."
Officer Wade also testified that neither Medley nor the passenger was charged with any violations concerning the tinted window or the object on the rearview mirror. He further testified as follows:
Q: So this was nothing more than a pretextual stop, was it?
A: As far as I'm concerned, you're correct. Yes, sir.
After Trooper Hawkins put handcuffs on Medley, he left Medley in his vehicle and went to the automobile that was being searched. Special Agent Wendell went to Trooper Hawkins's vehicle and read Medley his Miranda rights. Special Agent Wendell testified he asked Medley if he understood those rights. Medley said he did. When Special Agent Wendell asked Medley if he wished to waive his rights and talk with him, Medley responded that "he would talk to [Special Agent Wendell], but he didn't want to waive his rights." Special Agent Wendell testified that the following then occurred:
For several minutes I continued to talk to Mr. Medley saying I read him his Miranda rights. I asked him which rights he wished — that he wanted to invoke, and he said he wanted all of his rights. I told him that I cannot talk to him because of the third right — you have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with — excuse me — with you during questioning; and at that time he stated, I want all my rights, but I still want to talk to you. I again explained to him, I cannot talk to you — and I overemphasized that I cannot talk to him at all without having his waiver of rights; and he said, I don't want to waive anything on this. I want this sheet to remain the same — and this would be the sheet that I marked yes and then no — but I will talk to you.
Special Agent Wendell testified that he then asked Sergeant Clark to join him and talk to Medley.
At that particular point in time after minutes and numerous times trying to explain about I cannot talk to him if he does not wish to waive them, I brought Sergeant Clark in. Sergeant Clark and I both tried to explain over and over again to him that if he wishes to enact his Miranda rights, I cannot talk to him; and at that time Sergeant Clark also advised him of that. From that standpoint, Sergeant Clark and I closed the door — I closed the door myself; and Sergeant Clark advised him that if he wants to talk to us, he's going to have to initiate the conversation for us to continue to talk to him.
Sergeant Clark confirmed that after he joined Special Agent Wendell and again explained the Miranda rights to Medley, Medley responded that he understood his rights and said he "did not want to waive his rights, but . . . would talk to us." Sergeant Clark testified that after trying three more times, he told Medley that Medley would have to initiate the conversation otherwise they would not talk to him anymore. Special Agent Wendell and Sergeant Clark then left Medley alone in the vehicle. Special Agent Wendell joined the other officers who were searching the passenger's automobile.
Trooper Hawkins testified that Special Agent Wendell told him Medley did not give a statement. Trooper Hawkins testified that he then returned to his vehicle and read Miranda rights to Medley again. He explained those events as follows:
I sat back with Mr. Medley for a little while after his Miranda warnings were read to him. Special Agent Wendell had read them, and I had read them again, and he wasn't talking at that point when I was with him. He just said that everything — when I read them to him, he would say — he wouldn't say that he understood his rights. He wouldn't go that far with me.
* * * * * * *
When I talked to him, he — he wouldn't — when I asked him the question about will you waive your rights, he would never say I waive my rights. He would go as far as acknowledging his understanding; but he would not say, I waive my rights.
Trooper Hawkins testified that he then "determined, unless [Medley] approached [him] and wanted to talk to [him] again, [he] wasn't going to have any more conversation."
Special Agent Wendell testified that within a half an hour after he began searching the automobile, Trooper Hawkins came to him and said, "he wants to talk to you." Special Agent Wendell testified that the following occurred.
I then proceeded back to the vehicle and asked Mr. Medley, Do you want to talk to me? He said, Yes, I want to talk to you.
I again explained to him, if you're not willing to waive your rights, I cannot talk to you. He said, I — quote and unquote — Mr. Medley stated that he could talk to me because she had nothing to do with the investigation. I then explained to Mr. Medley, I don't want to talk to you unless you're willing to waive your rights; and he said, I'll talk to you. I just don't want anything to be used against me. I'll talk to you off record, and I told him that he cannot talk to me off the record because he invoked his rights. Again, he consistently told me that he wanted to talk to me; and, therefore, I began talking to him.
Special Agent Wendell testified Medley responded to his questioning and said that the passenger knew nothing, that he was being paid $1,500 for taking "the item" to Norfolk, that another car was following them to Norfolk, and that he was to deliver the item to the occupants of the other car in Norfolk.
Medley, a convicted felon, testified that he told all the officers he did not want to waive his rights and denied telling them he wanted to talk to them. He testified that when he told them he was not making statements, he gave them his lawyer's business card. He said one of the officers ripped it while talking to him. He testified that Trooper Hawkins "kept asking questions" and talked for thirty to forty minutes about waiving his rights. Medley further denied making any statements to Special Agent Wendell about going to New York or making a delivery to the people in a car following him.
The trial judge denied the motion to suppress, ruling as follows:
I think he had a right to stop him, and . . . if you believe his testimony, he didn't make any statements. So there is nothing to be suppressed. If you believe the officers' testimony, he didn't waive his rights; but he initiated the conversation. So I would overrule the motion.
This appeal challenges this ruling.
II.
At trial, Medley's attorney argued that Medley "did not waive hisMiranda rights and that any statement attributed to him would, therefore, be inadmissible." At trial and on appeal Medley cited Edwards v. Arizona, 451 U.S. 477 (1981), as authority supporting his position. The Commonwealth contends Edwards is inapplicable because Medley never invoked his right to counsel.
The United States Supreme Court held as follows in Edwards:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold 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.
451 U.S. at 484-85. "The Edwards rule does not apply unless the prior interrogation was custodial and during that custodial interrogation, the suspect clearly and unequivocally invoked his right to counsel."Commonwealth v. Gregory, 263 Va. 134, 147, 557 S.E.2d 715, 723 (2002).
The record establishes that Medley was in custody and consistently indicated he did not waive his rights on each occasion when the officers read Miranda rights to him. Although Medley testified that he gave one of the officers his lawyer's card, Special Agent Wendell denied that Medley did so. The trial judge believed the officer's testimony.
The Commonwealth correctly notes that no officer testified that Medley specifically mentioned his "right to counsel." Special Agent Wendell did testify, however, that he told Medley he could not "talk to him because of the third right — you have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with . . . you during questioning." Special Agent Wendell also testified that Medley responded to that comment by saying, "I want all my rights." Therefore, Special Agent Wendell, who was the first officer to read Miranda rights to Medley, was aware that Medley did not waive his right to talk to his attorney before being interrogated. In view of this circumstance, Special Agent Wendell certainly "'would understand the statement to be a request for an attorney.'" McDaniel v. Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851, 853 (1999) (citation omitted). The record further reflects that after Trooper Hawkins and Sergeant Clark read Miranda rights to Medley, Special Agent Wendell returned to the vehicle and again questioned Medley. He was fully aware of Medley's earlier refusal to waive his right to an attorney, and he initiated the interrogation with full knowledge that the other two officers had conversed with Medley.
Because Medley never specifically mentioned "his right to counsel,"Gregory, 263 Va. at 147, 557 S.E.2d at 723, and because Medley generally indicated he was not waiving any of his rights, we believe the following extended excerpt from Michigan v. Mosley, 423 U.S. 96, 100-04 (1975), guides our resolution of this issue:
Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda [v. Arizona, 384 U.S. 436 (1966),] opinion . . .:
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." 384 U.S., at 473-474.
This passage states that "the interrogation must cease" when the person in custody indicates that "he wishes to remain silent." It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his "right to silence" can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize "any statement taken after the person invokes his privilege" as "the product of compulsion" and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. . . ." 384 U.S., at 479. The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored."
(Footnotes omitted).
The evidence proved that Medley was in custody in the officer's vehicle and in handcuffs when Special Agent Wendell interrogated him. After Special Agent Wendell read Miranda rights to Medley, Medley told him "he didn't want to waive his rights." When Special Agent Wendell continued to talk to Medley and "asked him which rights . . . he wanted to invoke," Medley "said he wanted all of his rights." Rather than accepting Medley's invocation of his "rights" and ceasing the interrogation, Special Agent Wendell brought Sergeant Clark to assist him. They both talked to Medley extensively but Medley refused to waive his rights. When they left Medley alone in the vehicle, both were aware that Medley expressed his wish not to waive his Miranda rights.
Special Agent Wendell told Trooper Hawkins that Medley "didn't give a statement." Nevertheless, after only a momentary cessation, Trooper Hawkins entered the vehicle, read Miranda rights again to Medley, and renewed the attempt to get a statement. Thus, Trooper Hawkins violated Medley's option to terminate questioning. He began by repeating for at least the third time, the Miranda rights.
A: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one; and then I always go into the waiver. Do you understand each of these rights I've explained to you? And having these rights in mind, do you wish to talk to us now? He would never go into with me —
Q: Don't paraphrase or describe. Tell me exactly what he said to you.
A: I don't know verbatim how he responded to that; but I know it was to the point that he did not want to talk to me at that point, so I cut my conversation off then.
Q: You understood then that Mr. Medley did not waive his Miranda rights?
A: With me, he did not.
Special Agent Wendell testified that within a half hour of his departure from seeking a statement from Medley, Trooper Hawkins said Medley wanted to speak to Special Agent Wendell. The record contains no testimony from Trooper Hawkins about the circumstances giving rise to the conversation with Medley that led him to seek Special Agent Wendell. The record clearly establishes, however, that when Special Agent Wendell returned to the vehicle to re-interrogate Medley, less than a half hour had lapsed from his initial efforts. Thus, during a half-hour period Medley had been given at least three sets of Miranda warnings and subject to interrogation by Trooper Hawkins, Sergeant Clark, and twice by Special Agent Wendell. At no time did Medley say he was waiving his Miranda rights. Indeed, he said at all times and on each reading of Miranda that he would not waive his rights.
The evidence supports the trial judge's finding that Medley "didn't waive his rights." The Fifth Amendment right against self-incrimination protects an accused as follows:
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates . . . [that] the waiver [of the right] is made voluntarily, knowingly and intelligently. If . . . he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
Miranda, 384 U.S. at 444-45.
The evidence clearly establishes that the officers made repeated efforts to elicit a waiver after Medley said he understood his rights and did not want to waive any of them. In addition, no evidence proved that Medley initiated contact, communication, or exchange with Sergeant Clark or Trooper Hawkins. Special Agent Wendell brought in Sergeant Clark even after Medley said he would not waive his rights. Trooper Hawkins testified that he initiated his exchange with Medley after Special Agent Wendell said Medley "didn't give a statement." The pattern of repeatingMiranda warnings to Medley and then questioning him about his intent represents a "continuation of custodial interrogation after a momentary cessation," which the Supreme Court has recognized as conduct that "would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned."Mosley, 423 U.S. at 102. All of the officers testified that Medley communicated to them that he did not wish to waive his rights. Each officer who questioned him within that half-hour period also knew Medley previously had received Miranda warnings. Thus, the record clearly established that Medley's right to not be further questioned was not "scrupulously honored." Mosley, 423 U.S. at 104.
Simply put, the officers sought by their repeated approaches to undermine Medley's resolve not to waive his Miranda rights. Within less than a half hour, four officers "persist[ed] in repeated efforts to wear down [Medley's] resistance and make him change his mind." Mosley, 423 U.S. at 105-06. In view of Medley's express intention to exercise his Fifth Amendment privilege, the statement taken from him after officers questioned him on four occasions within a half hour "cannot be other than the product of compulsion, subtle or otherwise." Miranda, 384 U.S. at 474. Noting the Supreme Court's warning in Miranda "that 'illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.'" 384 U.S. at 459 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)), we hold that the persistent questioning on four occasions within a half hour by officers who read Miranda rights to Medley on at least three of those occasions demonstrated that Medley's refusal to waive his rights was not "scrupulously honored." Accordingly, we reverse the order denying the motion to suppress Medley's statements, and we remand for a new trial if the Commonwealth be so advised.
Reversed and remanded.
I concur with the majority in the judgment, but write separately because I do not believe the record in this case demonstrates that the officers failed to "scrupulously honor" Medley's refusal to waive his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). See Michigan v. Mosley, 423 U.S. 96, 100-04 (1975). I also disagree with the majority's implicit suggestion that Medley affirmatively invoked his right to an attorney.
Miranda recognized that if a suspect "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. As the majority recognizes, the United States Supreme Court has held that "the admissibility of statements obtained after [a] person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Mosley, 423 U.S. at 104. However, the Supreme Court of Virginia has recognized that "Miranda should not be read so strictly as to require the police to accept as conclusive any statement, no matter how ambiguous, as a sign that the suspect desires to cut off questioning." Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 737, 741 (1976); Midkiff v. Commonwealth, 250 Va. 262, 267, 462 S.E.2d 112, 115 (1995). Indeed, in Mosley, the Court acknowledged that "a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests." Mosley, 423 U.S. at 102 (emphasis added). Thus, while
[a]n express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, [it] is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added).
Here, after being read his Miranda rights, Medley told Special Agent Wendell that he "would talk to [him], but that he didn't want to waive his rights." Special Agent Wendell then explained to Medley that he could not continue to talk to him, "because of the third right — you have the right to talk to a lawyer for advice before we ask you any questions." Medley responded, "I want all my rights, but I still want to talk to you." Medley stated, "I don't want to waive anything on this," but again stated "I will talk to you." After several attempts to explain the Miranda rights to Medley, Medley continued to claim that he "did not want to waive his rights, but . . . would talk to [police]." Each time, police informed Medley that they could not continue to talk with him because he had invoked his rights under Miranda.
Approximately thirty minutes later, Trooper Hawkins approached Special Agent Wendell and stated, "[Medley] wants to talk to you." Special Agent Wendell testified that he again explained to Medley that he could not talk with him if he was "not willing to waive [his] rights." Medley responded that "he could talk to [Wendell] because [the passenger] had nothing to do with the investigation." Medley stated, "I'll talk to you. I just don't want anything to be used against me. I'll talk to you off record." Special Agent Wendell quite properly explained that Medley could not talk with him "off the record because he invoked his rights." Medley again "consistently told [Wendell] that he wanted to talk to [him]."
In my opinion, just as a suspect's silence may be equivocal, his invocation of unspecified "rights," coupled with a course of conduct clearly indicating that he wishes to talk to police, may reflect the suspect's indecision, ambivalence, or even calculation about whether to cooperate — as opposed to a clear understanding of his rights, and a clear invocation of his right to remain silent. See Midkiff, 250 Va. at 267-68, 462 S.E.2d at 115-16 (noting that statements such as "I'll be honest with you, I'm scared to say anything without talking to a lawyer," and "I don't got to answer that, Dick, you know," did not establish "a desire to cease all questioning"); see also Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124, 131-32 (1994) (holding no violation ofMiranda where defendant stated "I just don't think that I should say anything" and "I need somebody that I can talk to," but elected to proceed with the interrogation and failed to exercise his right to terminate questioning); see also United States v. Johnson, 529 F.2d 581, 584 (8th Cir. 1976) (holding no reversible error in admitting statement where police failed to inquire further to determine if suspect's "seemingly contradictory" actions in refusing to sign a waiver but agreeing to answer questions "was the product of intelligence and understanding or of ignorance and confusion"); Works v. State, 362 N.E.2d 144, 152 (Ind. 1977) (DeBruler, J., dissenting) (noting that "[i]n refusing to sign the waiver and in indicating a willingness to speak, appellant was taking contradictory positions. Under such circumstances the police should have made further inquiry to determine whether appellant's decision to relinquish the right to remain silent was being made out of ignorance and confusion. Without such an inquiry, no conclusion could reasonably be reached that appellant had intelligently and voluntarily relinquished the right to remain silent.").
In my view, the facts here support the conclusion that police "scrupulously honored" Medley's right to remain silent. In fact, credible evidence in the record suggests that it was only because of Medley's conduct that police inquired further of Medley to determine whether he understood his right to remain silent, and/or was ambivalent as to whether to invoke it or to waive it.
Nevertheless, the parties — both below and on appeal — argue this issue in terms of Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
In order to "prevent police from badgering a defendant into waiving his previously asserted Miranda rights" and to "protect the suspect's 'desire to deal with the police only through counsel,'" the United States Supreme Court established the "Edwards rule" as a "second layer of prophylaxis for the Miranda right to counsel." See Davis [v. United States, 512 U.S. 452, 458 (1994)]; McNeil v. Wisconsin, 501 U.S. 171, 176, 178, 111 S.Ct. 2204, 2208, 2209, 115 L.Ed.2d 158 (1991); Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990). Pursuant to Edwards and its progeny, once the defendant invokes his Miranda right to counsel, all police-initiated interrogation regarding any criminal investigation must cease unless the defendant's counsel is present at the time of questioning. See Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Arizona v. Roberson, 486 U.S. 675, 683, 108 S.Ct. 2093, 2099, 100 L.Ed.2d 704 (1988); Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885; see also Jackson v. Commonwealth, 14 Va. App. 414, 416, 417 S.E.2d 5, 6-7 (1992). If the police initiate interrogation of a defendant after he has invoked his Miranda right to counsel and before his counsel is present, "a valid waiver of this right cannot be established . . . even if he has been advised of his rights." Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85.
Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474-75 (1997).
Whether the Edwards rule renders a statement inadmissible is determined by a three-part inquiry. First, the trial court "must determine whether the accused actually invoked his right to counsel" and whether the defendant remained in continuous custody from the time he or she invoked this right to the time of the statement. Second, if the accused has invoked his or her right to counsel and has remained in continuous custody, the statement is inadmissible unless the trial court finds that the statement was made at a meeting with the police that was initiated by the defendant or attended by his lawyer. Third, if the first two parts of the inquiry are met, the trial court may admit the statement if it determines that the defendant thereafter "knowingly and intelligently waived the right he had invoked."
Id. at 712, 492 S.E.2d at 475 (quoting Smith v. Illinois, 469 U.S. 91, 96 (1984)) (other citations omitted).
In the case at bar, the trial court held "[Medley] didn't waive his rights; but he initiated the conversation. So I would overrule the motion [to suppress]." It is clear from the record that Medley did not, affirmatively or otherwise, unequivocally invoke his right to an attorney. Thus, an Edwards analysis was never triggered and was not appropriate then nor is such an analysis appropriate now. See Commonwealth v. Gregory, 263 Va. 134, 147, 557 S.E.2d 715, 723 (2002) ("The Edwards rule does not apply unless the prior interrogation was custodial and during that custodial interrogation, the suspect clearly and unequivocally invoked his right to counsel."). Indeed, the only question to be answered on this record is whether the police questioned Medley in violation of his Miranda rights.
The trial court specifically found that Medley did not waive his rights. While it is well settled that "[a] defendant's waiver of hisMiranda rights is valid only if the waiver is made knowingly, voluntarily and intelligently . . . [and] [w]hether a statement is voluntary is ultimately a legal rather than factual question, [s]ubsidiary factual questions . . . are entitled to a presumption of correctness." Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163 (1987) (citations omitted). Here, the trial court concluded factually that Medley "didn't waive his rights." Accordingly, contrary to the approach taken by the majority, there is no need to determine the legal issues of either the voluntariness of Medley's statement, or the applicability of Edwards. I therefore disagree with the majority's analysis concerning the police conduct at issue here, but I am bound to concur in its judgment because of the trial court's factual finding that Medley never explicitly or implicitly waived any of his rights under Miranda.