                THE COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 0344-02-1                JUDGE ROBERT J. HUMPHREYS
                                               JULY 15, 2002
MICHAEL ANTHONY MORRIS


      FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
                       COUNTY OF JAMES CITY
                 Samuel Taylor Powell, III, Judge

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellant.

          Patrick Kelley (Richard E. Hill, Jr.; David
          Holland's Law Group, L.L.C., on brief), for
          appellee.


     The Commonwealth of Virginia appeals a ruling of the trial

court suppressing evidence pertaining to the indictments of

Michael Anthony Morris for six counts of rape and one count of

taking indecent liberties with a child by a person in a

supervisory or custodial relationship.   Specifically, the

Commonwealth contends the trial court erred in suppressing Morris'

voluntary statements to police.   Morris noted a cross-appeal

pertaining to the same issue.   For the reasons that follow, we

reverse and remand.


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

     On October 4, 2001, Morris contacted Detective William

Lawson, with the Williamsburg Police Department, and told him "he

wanted to turn himself in in [sic] Richmond," for charges that had

been filed against him in Williamsburg.     Accordingly, Morris was

served with arrest warrants, arrested by Richmond police, and

taken before a Richmond magistrate.    Shortly thereafter, Morris

was released into the custody of Detective Lawson and Lieutenant

Smith to be transported to Williamsburg.

     During the trip, Detective Lawson advised Morris of his

Miranda rights.   Morris responded "I think I need to talk to my

lawyer."   Accordingly, Detective Lawson and Lieutenant Smith

immediately terminated their conversation with Morris.

A few moments later, the officers' Deputy Chief contacted them on

Smith's car phone, which was on speaker mode, and stated that they

were considering bringing an additional charge against Morris.

Lieutenant Smith then informed the Deputy Chief that Morris said

he wanted to talk with a lawyer.   Morris overheard the entire

conversation.   When the call ended, Morris began asking the

officers about the additional charge.   They told him they did not

know what it was.

     When the three men arrived at the Williamsburg police

department, the officers placed Morris in an interrogation room so

that Detective Lawson could complete Morris' Miranda form, as well

as some additional paperwork, instead of taking Morris directly to

                               - 2 -
the jail.   Detective Lawson testified that he could have completed

the paperwork at the jail, but placed Morris in the interrogation

room so that he could leave him alone while he was working on the

paperwork, but still monitor him via the video surveillance system

in the room. 1   He claimed that his Deputy Chief was a "stickler"

for paperwork and "like[d] to have those things in writing" "for

[their] case files." 2

     While Lieutenant Smith was in his office working, Detective

Lawson entered the interview room and explained the Miranda waiver

form to Morris, telling him that he had "already verbally

explained to him his Miranda rights traveling back from Richmond

and this form – [he] wanted to complete this form in order to

document [his] paperwork."    Detective Lawson then read the five

statements at the top of the form to Morris, which consisted of

the standard Miranda warnings, including the statement, "You have

the right to talk to a Lawyer and have him present with you while

you are being questioned."    Morris initialed the five statements,

and stated, "Well, what if I want to talk now?"    Detective Lawson




     1
       The evidence presented to the trial court established that
the recording equipment linked to the surveillance system, which
was used to record Morris' subsequent statement, was not
activated at this time.
     2
       In its oral argument, the Commonwealth conceded that there
was no legal requirement that Morris execute the police
department's Miranda form or any of the additional unidentified
"paperwork."

                                - 3 -
asked Morris the last two questions on the form: "1.    Do you

understand each of these rights I have explained to you?

2.   Having these rights in mind, do you wish to talk to us now?"

Morris initialed "Yes," in response to each question.

      Detective Lawson then left the room to ask Lieutenant Smith

to sit in on the interview.   Smith set the video monitoring system

to record the interview before returning to the room with

Detective Lawson.

      When the two officers arrived in the room, they found that

Morris had written the word "yes" next to the statement on the

Miranda form informing him of his right to speak with a lawyer.

Neither officer was sure when Morris had made the notation. 3

Lieutenant Smith thus asked Morris to confirm that he had changed

his mind and wanted to speak to the officers without counsel.

Morris nodded in the affirmative.   He then stated, "But I do like

to have an attorney.   I mean I read the memorandum and it said I

can have one present."   Smith agreed and informed Morris that an

attorney would advise him to "shut [his] mouth."   He then offered

to "stop now and just take [Morris] to jail and serve all the

papers."




      3
       Although not noted in the transcript, the videotape
clearly indicates that Morris picked up a pen and made a
notation on the rights form after Detective Lawson had left the
interview room and moments before he returned with Lieutenant
Smith.

                               - 4 -
     However, Morris continued asking questions about the charges

against him.    Morris asked about the details of the charges and

the sentence he would be exposed to.    He asked whether the State

would be easier on him if he cooperated, and inquired as to

whether he would be sent to a maximum-security prison, expressing

his concern that "rapists" get killed in prison.   Additionally,

Morris asked if his wife could be charged and stated she did not

know anything about the matter.   The officers informed Morris that

they could not ask him any questions, but answered Morris'

questions.   After several minutes of this conversation, Morris

acknowledged that he did not have a lawyer and stated that he did

not want one.    He subsequently signed a waiver form and gave a

full confession. 4

     Morris was thereafter indicted on six counts of rape and one

count of taking indecent liberties with a child by a person in a

supervisory or custodial relationship.    On December 11, 2001,

Morris filed a motion to suppress his confession contending the

officers' questioning violated his constitutional rights.




     4
       We note that the video recording of the interview, as well
as a transcript of the video recording, although referred to
repeatedly by the prosecutor and subsequently offered as
exhibits by the defense without objection by the Commonwealth,
were not actually admitted as exhibits but "[were] made a part
of the record" after the court announced its ruling.
Accordingly, we consider both the videotape and the transcript
as part of the record on appeal.

                                - 5 -
        The trial court held a hearing on the motion on December 18,

2001.    After reviewing the evidence, the trial court issued its

ruling on January 25, 2002.    The court held as follows:

             [t]he Court will make the following finding:
             number 1, the defendant was in custody;
             number 2, during the transportation from
             Richmond to the City of Williamsburg he was
             read his Miranda rights; during that time he
             requested an attorney; all questioning
             stopped; he was taken to the police
             department where questioning resumed, i.e.,
             the police initiated contact by asking a
             series of paperwork questions, more
             particularly asking him to complete the
             Miranda forms in writing which led to
             additional questioning.

             The Court is of the opinion that that [sic]
             was improper, that he was in custody, he
             exercised his Miranda rights, and that he
             did not initiate the additional contact
             while he was – additional discussion that
             took place, he was without legal counsel.

             And considering the totality of the
             circumstances the Court finds the Miranda
             rule was violated. Accordingly, the
             statement would not be admissible. The
             Court will suppress the statement.

             The Court will further rule that the
             statement was knowingly, intelligently, and
             voluntarily made; it was fully voluntary,
             and accordingly could be used for
             impeachment purposes if necessary. So I
             grant your motion to suppress.

                             II.    ANALYSIS

        On appeal, the Commonwealth argues the trial court erred in

sustaining Morris' motion to suppress, relying upon Edwards v.

Arizona, 451 U.S. 477 (1981) and its progeny, as "the police did

not initiate a new interrogation by asking him to complete routine


                                   - 6 -
paperwork."     Morris cross-appeals, contending that the police

improperly initiated interrogation after he had invoked his right

to counsel.

     On review of the trial court's ruling granting a motion to

suppress, the appellate court views the evidence in the light most

favorable to the defendant, the prevailing party below, and grants

him all reasonable inferences fairly deducible from that

evidence. 5    "Although we review the trial court's findings of

historical fact only for 'clear error,' we review de novo the

trial court's application of defined legal standards to the facts

of the case." 6

     As a basic premise, in compliance with Miranda v. Arizona,

384 U.S. 436 (1966), officers must inform the accused of his right

to remain silent and his right to an attorney, court appointed if

necessary, before a custodial interrogation may take place.

              Included among the safeguards established in
              Miranda is the right of a suspect to have
              counsel present at any custodial
              interrogation and to terminate the
              interrogation by invoking this right. In
              order for a defendant's statement to be
              admissible at trial, the Commonwealth must
              prove that the defendant was informed of his
              Miranda right to counsel, i.e., that he has
              the right to consult with a lawyer, to have
              the lawyer present during interrogation and

     5
       Russell v. Commonwealth, 33 Va. App. 604, 535 S.E.2d 699
(2000); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991).
     6
       Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d
102, 105 (1998) (citation omitted).

                                  - 7 -
          that, if the defendant is indigent, a lawyer
          will be appointed to represent him. If the
          interrogation continues without the presence
          of an attorney, the defendant's statement is
          inadmissible unless the Commonwealth proves
          by a preponderance of the evidence that the
          defendant voluntarily, knowingly, and
          intelligently waived his right to retained
          or appointed counsel.

          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." 7

          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. 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." 8

          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


     7
       Quinn v. Commonwealth, 25 Va. App. 702, 710-12, 492 S.E.2d
470, 474-75 (1997) (citing Davis v. United States, 512 U.S. 452,
458 (1994); McNeil v. Wisconsin, 501 U.S. 171, 176 (1991);
Michigan v. Harvey, 494 U.S. 344, 350 (1990)).
     8
       Id. (citing Edwards, 451 U.S. at 484; 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)).

                              - 8 -
             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." 9

     As an initial point, the Commonwealth assumes, without

conceding, that Morris unequivocally invoked his right to counsel

when he stated "I think I need to talk to my lawyer." 10

Nevertheless, the officers treated Morris' statement as an

unequivocal request for a lawyer as they terminated further

conversation with him at that point.     Further, the trial court

found that Morris' statement was intelligently, knowingly and

voluntarily made, a finding which neither party disputes.    Thus,

it is only the second prong of the Edwards test at issue on

appeal.

     In this regard, the trial court found that the officers'

questioning of Morris resumed after they arrived at the police

station and placed him in the interrogation room.    Specifically,



     9
          Id. (citing Smith v. Illinois, 469 U.S. 91, 96 (1984)).
     10
       The Commonwealth states that they have maintained this
position throughout the proceedings. Indeed, we find that the
trial court has not rendered a ruling on this precise issue.
Accordingly, we do not address it on appeal.

                                 - 9 -
the court held that, after Morris had invoked his right to counsel

while in the car, "the police [improperly] initiated the contact

[with Morris] by asking a series of paperwork questions

. . . which led to additional questioning."

     However, we have held that "'police do not impermissibly

"initiate" renewed interrogation by engaging in routine

conversations with suspects about unrelated matters.'" 11   Thus,

"'[p]olice words or actions "normally attendant to arrest and

custody" do not constitute interrogation,' although the police may

not ask questions, even during booking, 12 that are designed to

elicit incriminatory admissions."13

     Here, the officers ceased any conversation with Morris as

soon as he purportedly invoked his right to counsel.   However,

instead of taking him to the jail, they placed him in an

interrogation room at the police department to complete their

paperwork associated with his arrest.   As part of that process,


     11
       Foster v. Commonwealth, 8 Va. App. 167, 174, 380 S.E.2d
12, 16 (1989) (citing Edwards, 451 U.S. at 490).
     12
       Moreover, to the extent that the trial court's holding
suggests that "paperwork" attendant to the booking procedure may
constitute improper questioning on the part of police, we note
that we have specifically recognized a routine booking question
exception in Virginia, "'which exempts from Miranda's coverage
questions to secure the biographical data necessary to complete
booking or pretrial services.'" Watts v. Commonwealth, 38
Va. App. 206, 215-16, 562 S.E.2d 699, 703-04 (2002) (quoting
Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)).
     13
       Id. (citing Wright v. Commonwealth, 2 Va. App. 743, 746,
348 S.E.2d 9, 12 (1986); South Dakota v. Neville, 459 U.S. 553,
564 n.15 (1983); Muniz, 496 U.S. at 602 n.14).

                              - 10 -
they asked Morris to complete a Miranda waiver form that was

standard documentation their supervisor routinely expected them to

complete.

     Moreover, the officers testified that Morris was placed in

the interrogation room only so that he could be monitored while

the officers were in their respective offices, or were otherwise

not in the room with him.   The officers asked no questions of

Morris concerning the offenses, nor was there any evidence to

suggest that the officers' actions were designed or intended to

elicit an incriminating response from Morris. 14

     Indeed, the officers re-entered the room with Morris only

after he indicated to Detective Lawson he wanted "to talk" and

initialed a written statement that he wished to talk with them.

We have held that "police legitimately may inquire whether a

suspect has changed his mind about speaking to them without an




     14
       Wright, 2 Va. App. at 746, 348 S.E.2d at 12 (holding
Miranda warnings unnecessary where information obtained as a
result of conduct normally attendant to arrest and custody and
noting "the total absence of any evidence that the
questioning . . . was intended or designed to produce an
incriminating response."); see also Timbers v. Commonwealth, 28
Va. App. 187, 196, 503 S.E.2d 233, 237 (1998) (holding that in
order to determine whether actions of police are "reasonably
likely to elicit an incriminating response," we must determine
"whether an objective observer would view an officer's words or
actions as designed to elicit an incriminating response.")
(citing Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d
838, 841 (1988); Rhode Island v. Innis, 446 U.S. 291 (1980)).

                               - 11 -
attorney." 15   This was clearly the situation in the case at bar.

The record demonstrates that the "additional questioning"

concerned only whether or not Morris actually wanted a lawyer

before speaking with the officers.    In fact, Morris only increased

the uncertainty of whether he invoked or waived his right to

counsel by writing "yes" by the question concerning his wish for

counsel (while Detective Lawson went to get Lieutenant Smith) and

then saying, "But I do like to have a lawyer."    The ensuing police

questions were clearly asked to determine what Morris actually

wanted:   counsel or no counsel.   At no point did the police

interrogate Morris about the criminal charges.    Instead, they

merely sought to clarify his contradictory oral and written

statements as to his desire for counsel.

     Further, the record conclusively demonstrates that it was

Morris, and not the officers, who began any substantive discussion

by asking numerous questions concerning the offenses.    The

officers simply provided Morris with truthful responses to his

questions, while properly reminding him that they could not ask

him any further questions if he chose to maintain his choice to

proceed with counsel.    Thus, it was Morris who initiated the

additional conversation concerning the offenses by "represent[ing]




     15
       Foster, 8 Va. App. at 174, 380 S.E.2d at 16 (citing
Edwards, 451 U.S. at 490).

                                - 12 -
a desire . . . to open up a more generalized discussion relating

directly or indirectly to the investigation." 16

     As set forth above and contrary to the trial court's ruling,

police are not precluded from engaging in routine conversations

with suspects and/or asking questions to clarify whether a suspect

has changed his or her mind about wanting a lawyer and such

inquiries do not amount to police-initiated interrogation within

the meaning of Edwards. 17   Moreover, a suspect may render himself

subject to further interrogation if he "initiates [the] further

communication, exchanges, or conversations with the police." 18

     Therefore, even in viewing the facts in the light most

favorable to the defendant, Morris, we find that the trial court

erred in holding that the officers' conduct constituted an

improper initiation of an interrogation following the exercise of

a defendant's right to counsel during questioning by police.

Accordingly, we reverse the decision of the trial court and remand

with instructions to the trial court to vacate its order

suppressing the relevant statements.

                                              Reversed and remanded.




     16
       Giles, 28 Va. App. at 535, 507 S.E.2d at 106 (citing
Oregon v. Bradshaw, 462 U.S 1039, 1045 (1983)).
     17
       See Bunch v. Commonwealth, 225 Va. 423, 434-35, 304
S.E.2d 271, 277 (1983).
     18
          Edwards, 451 U.S. at 484-85.


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