                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.   Record No. 2556-98-1               JUDGE SAM W. COLEMAN III
                                              APRIL 13, 1999
RICHARD THOMAS ANDERSON


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                Jack B. Stevens, Judge Designate

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellant.

          David H. Moyer (Bashara & Hubbard, on
          brief), for appellee.



     Richard Thomas Anderson is charged with two counts of

robbery, two counts of abduction, four counts of use of a firearm

in the commission of a felony, and unlawfully wearing a mask.   The

trial court granted Anderson’s motion to suppress statements he

made to police on April 10, 1998 and May 1, 1998.   We granted the

Commonwealth an interlocutory review of the trial judge’s ruling.

Because the trial judge based his ruling on a single and erroneous

principle of law in suppressing the statements, we reverse.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                             BACKGROUND

     When the Commonwealth appeals a trial court’s order

suppressing evidence, we view the relevant evidence in the light

most favorable to the defendant granting to the defendant all

reasonable inferences fairly deducible therefrom.   Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

     Officers arrested Anderson on April 10, 1998, in connection

with a robbery.   Detective Loftin brought Anderson to an interview

room where he presented Anderson with a “Legal Rights Advice Form”

explaining his Miranda rights.    Anderson answered “no” to item

number six that read “I further state that I waive these rights

and desire to make a statement.”    Anderson informed Detective

Loftin that he did not want to speak to him.   According to

Anderson, he further informed Loftin that he had retained a lawyer

and that he wanted to speak with his lawyer.   Loftin left Anderson

in the interview room.

     Anderson’s attorney arrived at the police station shortly

after the officers took Anderson into custody.   The attorney

requested to see Anderson, but the officers denied him access.

     Forty minutes after Loftin left the interview room, two

homicide detectives entered the room and questioned Anderson

regarding two unsolved homicide cases.    After the homicide

detectives left, Loftin returned to the room -– however, the

testimony conflicts regarding his return.



                                 - 2 -
     Anderson’s testimony was that Loftin reinitiated the

interrogation.    Anderson testified that Loftin returned and

cautioned Anderson that he was in “real trouble now,” that he was

suspected of homicide, and that “the bank robbery wasn’t going to

be anything.”    Loftin left the interview room for another hour,

after which he returned and explained to Anderson that if he “told

[Loftin] anything about the robbery, then [Loftin] could talk to

the detective on homicide and [Anderson] wouldn’t have to worry

about that.”    Shortly thereafter, Anderson waived his Miranda

rights and made a statement to Loftin.

     In contrast, Loftin testified that Anderson requested a

cigarette, which Loftin delivered.       During that contact, Anderson

began discussing his problems.    Eventually, Anderson started to

talk about issues related to the robbery charge.      Loftin stopped

him and again advised him of his rights, whereupon Anderson waived

his rights and made a statement.

     On May 1, 1998, Investigator Peterson requested to speak with

Anderson concerning a different robbery.       Anderson, who was still

in custody, informed the investigators that he had a lawyer, that

he wanted to speak with the lawyer, and that he did not want to

make a statement.   The investigators told Anderson that his lawyer

represented him on a different case and therefore “it didn’t

matter.”   Thereafter, Anderson waived his Miranda rights and made

a statement to police.



                                 - 3 -
     Although substantial evidence in the record indicated that

Anderson requested to see an attorney, the trial judge did not

resolve that factual dispute or suppress the evidence on that

basis.    Instead, the trial court found that the police officers

had adequate notification that Anderson was represented by counsel

and that Anderson’s counsel had clearly expressed a desire to meet

with Anderson.   The trial court expressly held that failure of the

police officers to permit the attorney to see his client, upon

request from the attorney, rendered both statements in violation

of Anderson’s Fifth Amendment privilege against

self-incrimination.   Accordingly, on that basis the trial judge

suppressed the statements.

                               ANALYSIS

     We review de novo the trial court’s application of defined

legal standards to the historical facts.   See Quinn v.

Commonwealth, 25 Va. App. 702, 712-13, 492 S.E.2d 470, 475-76

(1997).

     The trial court relied on an erroneous legal principle in

concluding that the investigators violated Anderson’s Fifth

Amendment rights.   The trial court stated that

            [w]hen the lawyer shows up and says my
            client is back there and I want to see him,
            I think that’s adequate notification that
            the defendant is represented by counsel and
            he must be allowed access to the defendant,
            his client, if [police] are going to
            question him.



                                - 4 -
     In Moran v. Burbine, 475 U.S. 412 (1986), police officers

deliberately misinformed an attorney who had been contacted for

the defendant by telling him that the defendant would not be

questioned until the following day and by failing to inform the

attorney of more serious charges brought against his client.

Additionally, the officers declined to inform the defendant that

an attorney had been contacted to represent him.   However, as to

a suspect’s Fifth Amendment right to counsel, the Supreme Court

refused “to adopt a rule requiring the police to inform a

suspect of an attorney’s efforts to reach him.”    Id. at 425.

“Events occurring outside the presence of the suspect and

entirely unknown to him surely can have no bearing on the

capacity to comprehend and knowingly relinquish a constitutional

right.”   Id. at 422; see also Jackson v. Commonwealth, 255 Va.

625, 638, 499 S.E.2d 538, 546 (1998) (holding it was not error

for police to lie to a sixteen-year-old juvenile defendant about

whether his mother was in the building nor for police to deny

the mother’s attempt to see the defendant).   Thus, because the

right to remain silent and to have counsel present belong to the

defendant, neither an attorney’s presence nor the attorney’s

request to see his or her client are relevant as to whether the

defendant invoked his Fifth Amendment privilege against

self-incrimination.   See Moran, 475 U.S. at 421-28.

Accordingly, by suppressing the evidence because the police



                               - 5 -
officers failed to honor counsel’s request to see his client,

the trial court applied an erroneous legal standard.

     We decline to address whether investigators obtained the

defendant’s statements in violation of his Fifth Amendment right

to counsel.   That issue, although presented to the trial court in

the motion to suppress and on the evidence, has yet to be decided

by the trial court and is not before us on appeal.

     Accordingly, because the trial court has yet to consider

properly whether investigators violated Anderson’s Fifth Amendment

right to counsel, and because the only basis upon which the trial

court suppressed the statements was invalid, we reverse and remand

for such further action as is required.

                                            Reversed and remanded.




                               - 6 -
