                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


JASON WAYNE GREGORY
                                          MEMORANDUM OPINION * BY
v.   Record No. 1671-99-2                  JUDGE ROBERT P. FRANK
                                               MARCH 13, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          Steven D. Benjamin (Betty Layne DesPortes;
          Benjamin & DesPortes, P.C., on briefs), for
          appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Jason Wayne Gregory appeals his convictions, after bench

trials, for capital murder, robbery, two counts of use of a

firearm, burglary, grand larceny, and vandalism.   On appeal, he

contends the trial court erred in:   1) denying his motion to

dismiss the burglary, grand larceny, and vandalism charges because

of a speedy trial violation pursuant to Code § 19.2-243, 2)

finding he was not in custody for the purposes of Miranda when he

was interviewed by police on January 4, 1998, 3) finding he did

not invoke his right to counsel during the January 4, 1998

interview, 4) denying his motion to suppress his statement and all

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence derived from interviews on January 4, 1998 and January

16, 1998, 5) finding he made a knowing, intelligent, voluntary

waiver of his Miranda rights prior to the January 16, 1998

interview, 6) denying his motion for a mistrial based on the

Commonwealth's failure to comply with Rule 3A:11, and 7) denying

his motion to strike the admission of his statements as a sanction

for the Commonwealth's failure to comply with Rule 3A:11.

                           I.   BACKGROUND

     On December 31, 1997, a Chesterfield County police officer

found James Michael Lambrecht (victim) lying dead in a parked

vehicle.   An autopsy revealed the victim died as a result of two

gunshot wounds to the right side of his head.     The victim's wife

testified the victim sold marijuana, usually to his friends.     When

the police began their investigation into the victim's death, she

provided them with the victim's address book, which contained the

names of people with whom the victim made drug transactions.     One

of the names listed in the address book was "Jason," and the

police determined from the victim's family that "Jason" was

appellant.

     Detective Elizabeth Baker visited appellant's home and left a

message for him to contact her.   On January 4, 1998, appellant

contacted Detective Baker, who, along with Detective Steve Smith,

traveled to appellant's residence.      Appellant agreed to accompany

the detectives back to the police station for an interview.     At

this time, appellant was not placed under arrest, was not

                                - 2 -
handcuffed, and rode in the front passenger seat of the

detectives' vehicle.   Appellant was not advised of his Miranda

rights prior to the interview.    During the interview, appellant

stated he had been with Jeff Able on the evening of December 30,

1997.   At one point during the interview, appellant mentioned an

attorney.    He testified he said, "'I think I need an attorney,'"

or "'I think I need a lawyer,' or something like that."    Detective

Smith responded, "Have you done something wrong that you need an

attorney?"    Detective Smith testified appellant's mention of a

lawyer was phrased as a question such as, "Is it time for a

lawyer," or "Think it's time for an attorney?"    Detective Smith

further testified he did not stop the interview because he

considered appellant's words to be a question and not a request

for an attorney.   Appellant admitted he interpreted Detective

Smith's response to mean that he did not need an attorney if he

had done nothing wrong and admitted he did not mention an attorney

at any other time during the interview.     Appellant was not placed

under arrest for the homicide of the victim at the conclusion of

the interview.   However, appellant was informed during the

interview that there was an outstanding capias for his arrest,

which was unrelated to the murder investigation.    After the

interview, an officer took appellant to the magistrate's office

where he was served with the capias.     Appellant was released on

bond.



                                 - 3 -
     On January 9, 1998, Detective Baker interviewed Jeff Able,

whose name also appeared in the victim's address book.   Able told

Detective Baker he had been at appellant's house the night of

December 30, 1997.   Able said appellant was drinking, firing his

gun, and repeatedly asking Able if he wanted to kill someone that

night.    As a result of Able's statement, Detective Smith went to

appellant's residence to conduct a search of the backyard.    The

police recovered three casings and two bullets in the yard.     The

search was conducted with the consent of Marvin Downs, another man

who lived in the house.

     On January 15, 1998, the Redeemer Lutheran Church on

Redbridge Road in Chesterfield County was burglarized and $60,000

worth of church property was stolen or vandalized.   During the

investigation of this incident, an employee of a convenience store

located near the church told the police that a man tried to buy

batteries for a radio that matched the description of a radio

stolen from the church.   The police viewed the store's security

camera videotape and identified the man with the radio as

appellant.

     On January 16, 1998, Able came to Detective Baker's office

and told her he had been with appellant the day before and

appellant indicated he had broken into the church.   He further

said appellant told him appellant had shot the victim and

appellant's friend, Michael Sammons, had "finished off" the

victim.   The police arrested Sammons, and Sammons implicated

                                - 4 -
himself and appellant in the murder.     Sammons also told the police

where to find appellant.    Police located appellant and took him

into custody.    At police headquarters, appellant was advised of

his Miranda rights and did not request an attorney.    Appellant

admitted to the homicide of the victim during the videotaped

interview.

     During a hearing on October 19, 1998, appellant appeared with

Mr. Tondrowski, co-counsel on the murder charge.    Appellant's

other attorney, Mr. Morgan, who was the lead attorney in the

murder case and his only counsel on the charges resulting from the

church burglary, was not present.    The Commonwealth moved to

continue the trial of the burglary-related charges until February

5, 1999.   The following exchange occurred between the trial court

and Mr. Tondrowski:

                  MR. TONDROWSKI: Judge, the only problem
             I have with that is that I have not discussed
             this issue with Mr. Morgan, and Mr. Morgan
             represents him on the B&E's, and I do not.
             That's the problem I have with it.

                  THE COURT: All right. Well, we're
             going to set it for February the 5th. That
             is the burglary case.

     The Commonwealth then moved to set the murder case during the

period February 15 through February 22.     The trial court asked Mr.

Tondrowski if he had the opportunity to consult with appellant

regarding the waiver of speedy trial.     Mr. Tondrowski consulted

with appellant and then indicated appellant was prepared to go

forward with the waiver.    The trial court then queried appellant

                                 - 5 -
regarding his waiver of speedy trial, and appellant stated he

would waive his right to a speedy trial.    The trial court set the

murder trial for February 22, 1999.

        On February 4, 1999, appellant filed a motion to dismiss the

charges related to the church burglary because his right to a

speedy trial had been violated.    The trial court denied the

motion.    Appellant was subsequently tried and convicted of the

charges related to the church burglary.

        During the murder trial, the Commonwealth played an edited

version of the videotaped statement appellant made on January 16,

1998.    A copy of the videotape had been given to the defense

before trial, but the copy did not work properly.    As the

videotape played, defense counsel realized he had not seen the

portion of the tape being shown.    The defense argued appellant had

been prejudiced in preparing his defense because the defense had

not viewed appellant's entire statement and moved for a mistrial.

The trial court denied the motion for a mistrial, struck the

portion of the tape the defense had not seen, and made Tori

DeMaio, a witness who the defense argued may have been present at

the scene of the murder, available to testify.    Appellant also

moved to strike the admission of the videotaped statement as a

sanction.    The trial court denied the motion to strike, and

appellant was convicted of capital murder, robbery, and two counts

of use of a firearm.



                                 - 6 -
                               II.

     Appellant argues the trial court erred in denying his motion

to dismiss his burglary, grand larceny, and vandalism charges

because the Commonwealth failed to try him within five months of

finding of probable cause in violation of Code § 19.2-243.

     Code § 19.2-243 states, in part:

               Where a general district court has found
          that there is probable cause to believe that
          the accused has committed a felony, the
          accused, if he is held continuously in
          custody thereafter, shall be forever
          discharged from prosecution for such offense
          if no trial is commenced in the circuit court
          within five months from the date such
          probable cause was found by the district
          court; and if the accused is not held in
          custody but has been recognized for his
          appearance in the circuit court to answer for
          such offense, he shall be forever discharged
          from prosecution therefor if no trial is
          commenced in the circuit court within nine
          months from the date such probable cause was
          found.

Code § 19.2-243(4), however, states the provisions of the section

do not apply if the failure to try the accused was caused:

          By continuance granted on the motion of the
          accused or his counsel, or by concurrence of
          the accused or his counsel in such a motion
          by the attorney for the Commonwealth, or by
          the failure of the accused or his counsel to
          make a timely objection to such a motion by
          the attorney for the Commonwealth, or by
          reason of his escaping from jail or failing
          to appear according to his recognizance.

     In Robinson v. Commonwealth, 28 Va. App. 148, 502 S.E.2d 704

(1998), we held:



                              - 7 -
               Under Code § 19.2-243, the Commonwealth
          must commence trial within five months, which
          "translates to 152 and a fraction days."
          Ballance v. Commonwealth, 21 Va. App. 1, 6,
          461 S.E.2d 401, 403 (1995). The five-month
          period begins to run on the day after the
          preliminary hearing at which probable cause
          is found. Randolph v. Commonwealth, 22 Va.
          App. 334, 335, 470 S.E.2d 132, 133 (1996).
          Any delays that are chargeable to the
          defendant are subtracted from the total
          number of days that elapse from the day after
          the finding of probable cause to the
          commencement of trial. If the time thus
          calculated exceeds 152 and a fraction days,
          the defendant "shall be forever discharged
          from prosecution for such offenses." Code
          § 19.2-243.

Id. at 152, 502 S.E.2d at 706.

     "A defendant may agree to a general waiver of his or her

statutory speedy trial rights, in which instance the accused

foregoes his or her rights granted by Code § 19.2-243."   Mitchell

v. Commonwealth, 30 Va. App. 520, 528, 518 S.E.2d 330, 334 (1999).

However, "a waiver of any constitutional right must be knowingly,

intelligently, and voluntarily made."    Peterson v. Commonwealth, 5

Va. App. 389, 396, 363 S.E.2d 440, 444 (1987) (citing Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)).

     In this case, on June 8, 1998, the general district court

found probable cause to believe appellant committed the burglary,

grand larceny, and vandalism.    Therefore, under Code § 19.2-243,

the Commonwealth had until November 7, 1998 to try appellant for

these charges.   Appellant was not tried until February 5, 1999.




                                 - 8 -
        At the October 19, 1998 hearing, the Commonwealth moved to

continue the trial of the charges related to the church burglary

until February 5, 1999.    The attorney who represented appellant on

the burglary-related charges was not present at the hearing.

Co-counsel on the murder charge was present at the hearing and

told the trial court that appellant's counsel for the

burglary-related charges was not present.    The trial court set the

trial for the burglary charge for February 5, 1999, without asking

appellant if he waived his right to a speedy trial.    Then, the

trial court proceeded to address the trial for the murder charge.

With regard to the continuance of the murder trial, the court

queried appellant about his desire to waive his right to a speedy

trial and asked appellant if he had discussed the matter with his

attorney.    Appellant indicated his desire to waive his right to a

speedy trial and agreed to set the murder trial for February 22,

1999.    His attorney on the murder charge, who was present,

concurred.

        The discussions of the continuance of the trial of the

burglary-related charges and the murder trial were two distinct

conversations.    Appellant was not represented by counsel on the

burglary, grand larceny, and vandalism charges, and he was not

asked whether he wished to waive his right to a speedy trial on

those charges.    The trial court set the trial for those charges

without querying appellant.    Once the trial judge set the trial

for the burglary-related charges for February 5, 1999, the sole

                                 - 9 -
issue in the court's colloquy was the continuance of the murder

trial.   We find appellant did not make a knowing, intelligent, and

voluntary waiver of his right to a speedy trial with respect to

the burglary, grand larceny, and vandalism charges, and,

therefore, appellant's right to a speedy trial pursuant to Code

§ 19.2-243 was violated.

                                  III.

     Appellant argues he was in custody during the January 4, 1998

interview and, because he was not advised of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), any statements and

evidence derived from the interview should have been suppressed.

The only evidence obtained during the interview that may have been

incriminating or may have led to incriminating information was

appellant's statement that he spent the evening of December 30,

1997 with Jeff Able.

     Assuming, without deciding, appellant was in custody for the

purposes of Miranda, we hold the police would have inevitably

discovered Jeffrey Able's name.

                In Nix v. Williams, 467 U.S. 431, 447,
           104 S. Ct. 2501, 81 L.Ed.2d 377 (1984), the
           Supreme Court of the United States held that
           "if the government can prove that the
           evidence [obtained by illegal means] would
           have been obtained inevitably and, therefore,
           would have been admitted regardless of any
           overreaching by the police, there is no
           rational basis to keep that evidence from the
           jury."




                               - 10 -
Timbers v. Commonwealth, 28 Va. App. 187, 199, 503 S.E.2d 233, 239

(1998).

                  [T]he inevitable discovery exception
             requires that the prosecution show: "(1) a
             reasonable probability that the evidence in
             question would have been discovered by lawful
             means but for the police misconduct; (2) that
             the leads making the discovery inevitable
             were possessed by the police at the time of
             the misconduct, and (3) that the police also
             prior to the misconduct were actively
             pursuing the alternative line of
             investigation."

Id. (quoting Walls v. Commonwealth, 2 Va. App. 639, 656, 347

S.E.2d 175, 185 (1986) (citation omitted)).

     Federal courts have applied the inevitable discovery doctrine

in cases where the evidence was obtained as a result of a Miranda

violation.    See Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th

Cir. 1994), cert. denied, 513 U.S. 1183 (1995); United States v.

Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir. 1987).

     In this case, Detective Baker testified that the victim's

wife gave the police an address book in which the victim kept the

names of his contacts and a record of his transactions.      Detective

Baker testified the police were doing interviews "with any and

everybody that knew [the victim]," and appellant's name in the

book led to their initial interview with him on January 4, 1998.

Able's name also was listed in the victim's book.

     In this case, the police possessed the victim's book, which

included both appellant's name and Able's name.    The police

testified they were interviewing everyone who knew the victim,

                                - 11 -
including the people listed in the book.   We hold, therefore, that

there was a reasonable probability the police would have

discovered Able's name exclusive of their interview with appellant

on January 4, 1998.   The police possessed the book on January 4,

1998, when they conducted the interview with appellant.    Both

Detectives Baker and Smith testified they were interviewing

everyone who knew the victim.   Therefore, the police clearly

possessed the lead, the book, making the discovery inevitable and

were pursuing the alternative line of investigation, questioning

everyone who knew the victim, prior to the January 4, 1998

interview.

                                 IV.

     Appellant contends he invoked his right to counsel during the

January 4, 1998 interview, which prohibited the police from

initiating the second interview with him on January 16, 1998.

     Assuming, without deciding, appellant invoked his right to

counsel on January 4, 1998, he did not provide the police with

inculpatory information subsequent to the invocation.   After the

invocation, Detective Smith asked appellant if he had done

something wrong and appellant answered that he had not.    The

detective then tried to establish a time-line of the evening the

victim was killed and asked appellant if he had ridden in the

victim's car that night.    Appellant answered in the negative.   The

detective asked appellant if he killed the victim and appellant

answered that he did not.   The detective then questioned appellant

                                - 12 -
about his willingness to take a polygraph test, the last time he

was in the victim's car, his stepfather's house, whether he knew

about the outstanding capias, if he knew why the victim was

killed, if he had ridden in the victim's Camaro, and whether he

owed the victim money.   None of appellant's responses to the

questions were inculpatory.   Then, the detective explained the

operation of a polygraph test and told appellant the test would be

inconclusive if he used alcohol or drugs.   Appellant then asked

Detective Baker about the capias and whether he would have to go

to jail.   She explained that he would go before the magistrate.

She also asked him if he avoided the police because of the capias

and he answered affirmatively.    She asked appellant how the capias

had arisen.    Appellant answered that he had driven on a suspended

license.   She asked if he was DUI at the time he was driving on

the suspended license and whether he had an identification card.

His answers to those questions were not inculpatory.     Appellant

then was asked if he wore glasses and when he last had a haircut.

His answers to those questions were not inculpatory.     Then,

Detective Smith asked appellant if he could examine his

sweatshirt.    Appellant gave the detective his shirt.   Appellant

does not allege and the record does not indicate that anything

related to the sweatshirt provided the police with inculpatory

information.   The detective then explained that everyone was a

potential suspect and the police were not focusing on appellant.

The detectives then asked appellant to show them his hands.      They

                                 - 13 -
remarked about some cuts and scratches on his hands and arms.      He

explained that some of the cuts were self-inflicted and that the

others were the result of playful wrestling.   The answers to those

questions were not inculpatory.    The detectives asked appellant

where he sat in the victim's car and he responded he sat in the

driver's seat.    They asked him if he knew where the victim kept

his drugs and he responded he did not know.    They asked him if he

went with the victim to make drug deals and he responded

negatively.   The detectives asked appellant if he knew how many

clients the victim had.    Appellant answered that he did not know.

None of these responses provided inculpatory information nor did

they lead to inculpatory information.    Finally, the detectives

explained to appellant that he would go before the magistrate on

the capias and asked him to empty his pockets on the table.   The

contents of his pockets did not result in the discovery of

inculpatory information.   None of the information provided by

appellant after the invocation was inculpatory.   Therefore, we

find the trial court's denial of the motion to suppress was

harmless error.

               "'[B]efore a federal constitutional
          error can be held harmless, the court must be
          able to declare a belief that it was harmless
          beyond a reasonable doubt;' otherwise the
          conviction under review must be set aside."
          Lilly v. Commonwealth, 258 Va. 548, 551, 523
          S.E.2d 208, 209 (1999) (quoting Chapman v.
          California, 386 U.S. 18, 24, 87 S. Ct. 824,
          828, 17 L.Ed.2d 705 (1967)). "This standard
          requires a determination of 'whether there is
          a reasonable possibility that the evidence

                                - 14 -
           complained of might have contributed to the
           conviction.'" Id. (quoting Chapman, 386 U.S.
           at 23, 87 S. Ct. at 827).

Brant v. Commonwealth, 32 Va. App. 268, 278-79, 527 S.E.2d 476,

481 (2000).

                "In making that determination, the
           reviewing court is to consider a host of
           factors, including the importance of the
           tainted evidence in the prosecution's case,
           whether that evidence was cumulative, the
           presence or absence of evidence corroborating
           or contradicting the tainted evidence on
           material points, and the overall strength of
           the prosecution's case."

Id. at 279, 527 S.E.2d at 481 (quoting Lilly, 258 Va. at 551, 523

S.E.2d at 209).

     In this case, the information provided to the detectives

after appellant's invocation was harmless beyond a reasonable

doubt.   Based on our review of the record, the information

obtained after the invocation was not important in the

prosecution's case against appellant because it was not

inculpatory and did not lead to inculpatory information.

     Appellant argues his waiver of his Miranda rights on January

16, 1998 was not valid pursuant to the rule established in Edwards

v. Arizona, 451 U.S. 477 (1981).   We disagree.

                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,
           512 U.S. at 458, 114 S. Ct. at 2355; McNeil

                               - 15 -
          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; see Eaton v. Commonwealth,
          240 Va. 236, 252, 397 S.E.2d 385, 395 (1990);
          Hines v. Commonwealth, 19 Va. App. 218, 221,
          450 S.E.2d 403, 404 (1994). However, the
          Edwards rule only applies to periods of
          continuous custody, and, if the defendant is
          released from custody following the
          invocation of his Miranda right to counsel,
          the Edwards rule does not bar subsequent
          police-initiated interrogation. See Tipton
          v. Commonwealth, 18 Va. App. 832, 834, 447
          S.E.2d 539, 540 (1994).

Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470,

474-75 (1997) (emphasis added).

     In Tipton, we held, "[t]he Edwards rule has not been expanded

to include non-custodial demands for an attorney or to

interrogation after an accused has been released from custody."

Tipton, 18 Va. App. at 834, 447 S.E.2d at 540.


                              - 16 -
     In this case, appellant was not in continuous custody.       He

was released from custody after the January 4, 1998 interview and

was not re-interviewed until January 16, 1998.   Therefore, under

Tipton, Edwards does not apply.

     Appellant argues Tipton does not apply because there was a

violation of his Miranda rights during the initial interview.

This argument has no merit under the facts of this case because,

as we stated above, he did not provide the police with inculpatory

information after the point at which he argues he invoked his

right to counsel.

                                  V.

     Appellant contends the waiver of his Miranda rights on

January 16, 1998 was not valid.   First, appellant argues the

waiver was tainted by the Edwards violation.    For the reasons

discussed above, we find this argument without merit.

     Second, appellant contends the waiver was the product of

police coercion, which rendered the waiver involuntary.    Appellant

argues he was physically intimidated by a "belligerent and

threatening officer" when he was arrested on January 16.

Specifically, he contends a detective threatened to "hammer on"

him and the police made promises of leniency.    We do not address

this issue because the record before us does not contain evidence

of that dialogue.

     Rule 5A:25 requires the appellant to file, no later than the

time for filing his or her opening brief, an appendix.    Rule

                              - 17 -
5A:25(a).   The appendix must contain "any testimony and other

incidents of the case germane to the questions presented."   Rule

5A:25(c)(3).   In this case, the record is devoid of a transcript

of the January 16, 1998 interview, and the tape of the interview

begins after appellant admitted he committed the murder and does

not reflect the threats or promises of which appellant complains.

                                VI.

     Appellant next contends the trial court erred in denying his

motion for a mistrial based on the Commonwealth's failure to

provide him with the entire videotape of the statement he made on

January 16, 1998, which, he argues, was a violation of Rule 3A:11.

Appellant also argues the trial court erred in denying his motion

to strike the admission of the January 16 statement as a sanction.

We disagree.

     "The relief to be granted upon a violation of Rule 3A:11 is

within the discretion of the trial court, giving due regard to the

right of the accused to call for evidence in his favor and to

investigate and evaluate the evidence in preparation for trial."

Frye v. Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267, 277 (1986)

(citations omitted).   "The remedial relief to be granted by the

trial court following a discovery violation or upon the late

disclosure of evidence is within the trial court's discretion and

will not be disturbed on appeal unless plainly wrong."   Moreno v.

Commonwealth, 10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990)

(citations omitted).

                               - 18 -
      The trial court struck the portion of the tape that had not

been provided to appellant before trial and gave appellant the

opportunity to call Tori DeMaio, the witness he contends may have

been present at the murder scene and may have had actual knowledge

of the sequence of events, to testify.   Appellant chose not to do

so.   Further, appellant did not request sanctions for the

Commonwealth prior to listening to the tape and did not request a

continuance so the tape could be further reviewed.   Therefore, we

find the trial court did not abuse its discretion in denying the

motion for a mistrial and the motion to strike.

      For these reasons, we reverse appellant's convictions for

burglary, grand larceny, and vandalism and affirm his convictions

for capital murder, robbery, and use of a firearm.

                                            Affirmed, in part,
                                            and reversed, in part.




                               - 19 -
Benton, J., concurring and dissenting.

        I concur in Parts I, II, III, and VI of the majority

opinion.    Because I believe that the police violated Jason Wayne

Gregory's right against self-incrimination as enunciated in

Miranda v. Arizona, 384 U.S. 436 (1966), and Arizona v. Edwards,

451 U.S. 477 (1981), I dissent from Parts IV and V.

        In denying Gregory's motion to suppress, the trial judge

found both that Gregory was not in custody and made no

unequivocal request for counsel on January 4, 1998.    I believe

the evidence establishes that these findings are plainly wrong.

In determining whether a suspect is in custody for purposes of

Miranda, "the only relevant inquiry is how a reasonable man in

the suspect's position would have understood his situation."

Berkemer v. McCarty, 468 U.S. 420, 442 (1984).     See also

Stansbury v. California, 511 U.S. 318, 322-23 (1994) (holding

that the objective circumstances must be examined to determine

whether the suspect was deprived of his freedom in a significant

way).

        The evidence proved that a capias had been issued for the

arrest of Gregory.    When Gregory telephoned the police on

January 4, he knew that he was wanted by two jurisdictions for

various alleged wrongs and that the capias existed.    Gregory

testified that he "had to go with [the police detective] . . . .

I was in custody.    I knew that."



                                - 20 -
     The officers who went to Gregory's home in marked police

vehicles and escorted him to the police station were also aware

of the capias for Gregory's arrest.      The officers also knew from

the beginning of the encounter that they would arrest Gregory

for his previous violations.    Thus, it does not matter that the

officers did not communicate this fact to Gregory.      See id. at

323-24.   They and Gregory knew the arrest would occur.     During

the interview at the police station, the officers informed

Gregory of the capias and delivered him to the magistrate at the

end of their interview.   He was the only suspect that the police

questioned at the station.    All of these factors indicate that

Gregory was clearly in custody and any reasonable person with

Gregory's record and in his situation would have understood he

was in custody.

     No evidence proved that Gregory was acting without

compulsion when the detectives escorted him to police

headquarters from his home.    He was in custody, and the

interview that occurred on January 4 was a custodial

interrogation.    During this interrogation, the officers

questioned Gregory concerning the death of James Michael

Lambrecht.   Gregory told the officers during that interrogation

"I think I should talk to a lawyer."     Although the detective to

whom he was speaking testified that Gregory had uttered a

question, "Think it's time for an attorney?," the videotape

supports Gregory's testimony.    The tone and inflection of the

                                - 21 -
detective's response, as well as his words, indicate that he

understood Gregory had made a declarative statement.    The trial

judge was plainly wrong to disregard this evidence and Gregory's

testimony.

     The record is undisputed that the officers ignored

Gregory's invocation of his right to speak to a lawyer and

continued questioning him.    Gregory's statement resembles the

statement in McDaniel v. Commonwealth, 30 Va. App. 602, 518

S.E.2d 851 (1999) (en banc).     There, we held that the statement,

"I think I would rather have an attorney here to speak for me,"

was an unequivocal request for counsel.    30 Va. App. at 606, 518

S.E.2d at 853.    Therefore, I would hold that the officers in

this case should have honored Gregory's request for counsel and

that they violated his Fifth Amendment rights when they did not.

     In unambiguous language, the Supreme Court has ruled as

follows:

                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. If the individual
             states that he wants an attorney, the
             interrogation must cease until an attorney
             is present.

                                - 22 -
Miranda, 384 U.S. at 473-74 (1966).   "[T]he admissibility of

statements obtained after the person in custody has decided to

[exercise Miranda rights] depends . . . on whether his 'right to

cut off questioning' was 'scrupulously honored.'"   Michigan v.

Mosley, 423 U.S. 96, 104 (1975).

     Further explaining Miranda, the Court held in Edwards,

"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 rule of the Edwards case came as a
          corollary to Miranda's admonition that "[i]f
          the individual states that he wants an
          attorney, the interrogation must cease until
          an attorney is present." In such an
          instance, [the Supreme Court] had concluded
          in Miranda, "[i]f the interrogation
          continues without the presence of an
          attorney and a statement is taken, a heavy
          burden rests on the government to
          demonstrate that the defendant knowingly and
          intelligently waived his privilege against
          self-incrimination and his right to retained
          or appointed counsel." In Edwards, [the
          Supreme Court] "reconfirm[ed] these views
          and, to lend them substance, emphasize[d]
          that it is inconsistent with Miranda and its
          progeny for the authorities, at their
          instance, to reinterrogate an accused in
          custody if he has clearly asserted his right
          to counsel." [The Court] concluded that
          reinterrogation may only occur if "the
          accused himself initiates further
          communication, exchanges, or conversations
          with the police. Thus, the prophylactic

                             - 23 -
            protections that the Miranda warnings
            provide to counteract the "inherently
            compelling pressures" of custodial
            interrogation and to "permit a full
            opportunity to exercise the privilege
            against self-incrimination," are implemented
            by the application of the Edwards corollary
            that if a suspect believes that he is not
            capable of undergoing such questioning
            without advice of counsel, then it is
            presumed that any subsequent waiver that has
            come at the authorities' behest, and not at
            the suspect's own instigation, is itself the
            product of the "inherently compelling
            pressures" and not the purely voluntary
            choice of the suspect. . . . "[T]he accused
            having expressed his own view that he is not
            competent to deal with the authorities
            without legal advice, a later decision at
            the authorities' insistence to make a
            statement without counsel's presence may
            properly be viewed with skepticism."

Arizona v. Roberson, 486 U.S. 675, 680-81 (1988) (citations

omitted).   These principles control our review of this case.

     Gregory expressed "his desire to deal with the police only

through counsel," Edwards, 451 U.S. at 485, by stating, "I think

I should talk to a lawyer."    The officers violated Miranda by

continuing the interrogation on January 4 and violated Edwards

by re-initiating questioning of Gregory on the same murder

investigation when they spoke to him on January 16.   Because of

his previous assertion of his right to counsel, the officers

were not permitted to re-initiate a custodial interrogation of

Gregory on this same matter.

     The fact that Gregory did not make any inculpatory

statements on January 4 does not mean that the officers did not


                               - 24 -
violate his Miranda rights as enhanced in Edwards.     If Gregory

had, in fact, confessed to the crime or made other inculpatory

statements on January 4, clearly those statements would have

been inadmissible because the officers did not read Gregory his

rights and they ignored him when he asserted them.    By ignoring

Gregory's request for counsel, the police sent the unmistakable

message that he had no such right.     Cf. United States v.

Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982) (noting that the

accused "knew from his experience the previous day that he could

end the interrogation by asking again to meet with an

attorney").   Clearly, when the police re-interrogated Gregory on

January 16 concerning Lambrecht's death, Gregory could have no

greater expectation that the police would honor a request for

counsel.   This is especially true when the officers are

questioning him again about the same events they questioned him

after ignoring his earlier request for counsel.    The net effect

of the officers' behavior on that date was to demonstrate to

Gregory that his right against self-incrimination was illusory

and that they would ignore any request he made for an attorney.

This behavior defies the rationale of Edwards.     On this record,

the government has not met its "heavy burden" of demonstrating

that Gregory knowingly and intelligently waived his privilege

against self-incrimination and his right to counsel.     See

Miranda, 384 U.S. at 475.



                              - 25 -
        The decision in Tipton v. Commonwealth, 18 Va. App. 832,

447 S.E.2d 539 (1994), does not control the outcome of this

case.    The police conducted two interviews with Tipton.      During

the initial interview, which Tipton conceded to be

non-custodial, see id. at 834, 447 S.E.2d at 540, and before

beginning the interrogation, the police gave Miranda warnings to

Tipton.     Id. at 833, 447 S.E.2d at 540.   After the police gave

those warnings, Tipton requested counsel.     The police honored

his request and did not conduct an interrogation.      Id.     Thus,

Tipton suffered no Miranda violation because he exercised his

right to counsel at his first encounter and the police honored

it.

        In each of the cases relied upon in Tipton, the police

ceased the initial interrogation upon the accused's request for

counsel.    I further distinguish this case from one on which the

Tipton Court relied, McFadden v. Garraghty, 820 F.2d 654 (4th

Cir. 1987).    In that case, as in this one, law enforcement

officials blatantly ignored a suspect's assertion of his Miranda

rights by re-initiating interrogation in violation of Edwards.

Id. at 658.    Unlike in this case, however, the confession

ultimately used at trial in McFadden was obtained by a separate

law enforcement agency inquiring about a crime separate from the

one discussed in the initial interrogation.      Id. at 660.

Therefore, the break in custody in this case does not have the

same effect as the break in McFadden and the Tipton rationale

                                - 26 -
does not apply.   Significantly, Tipton knew he could terminate a

police interrogation by invoking his right to counsel.   Because

of the interrogating officer's violation of Miranda, Gregory did

not.

          [T]he "relatively rigid requirement that
          interrogation must cease upon the accused's
          request for an attorney . . . has the virtue
          of informing police and prosecutors with
          specificity as to what they may do in
          conducting custodial interrogation, and of
          informing courts under what circumstances
          statements obtained during such
          interrogation are not admissible. This gain
          in specificity, which benefits the accused
          and the State alike, has been thought to
          outweigh the burdens that the decision in
          Miranda imposes on law enforcement agencies
          and the courts by requiring the suppression
          of trustworthy and highly probative evidence
          even though the confession might be
          voluntary under traditional Fifth Amendment
          analysis." The Edwards rule thus serves the
          purpose of providing "clear and unequivocal"
          guidelines to the law enforcement
          profession. Surely there is nothing
          ambiguous about the requirement that after a
          person in custody has expressed his desire
          to deal with the police only through
          counsel, he "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."

Roberson, 486 U.S. at 681-82 (footnote and citation omitted).

Moreover, I believe that when the police interrogated Gregory

without "restrict[ing] the second interrogation to a crime that

had not been a subject of the earlier interrogation," they also




                              - 27 -
failed to "scrupulously honor" his Fifth Amendment rights.

Mosley, 423 U.S. at 106.

     For these reasons, I would hold that the officers violated

Edwards when they re-interrogated Gregory on January 16 after he

had asserted his Miranda rights.   Because they obtained

Gregory's statements in violation of the United States

Constitution, the trial judge erred in refusing to suppress

those statements.   Therefore, I would reverse the convictions

and remand this case for a new trial on the capital murder

charge.   For the reasons stated in the majority opinion, I would

reverse and dismiss the burglary, grand larceny and vandalism

convictions.




                              - 28 -
