                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Frank
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 1915-99-4                  JUDGE ROBERT P. FRANK
                                             FEBRUARY 15, 2000
GEORGE BALL, JR., S/K/A
 GEORGE A. BALL, JR.


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                  Richard B. Potter, Jr., Judge

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

          Robert F. Horan, III (Hart & Horan, P.C., on
          brief), for appellee.


     The Commonwealth of Virginia (appellant) appeals the

suppression of the statement made by George Ball, Jr. (appellee)

to Detective McClelland of the Prince William County Police

Department.   On appeal, appellant contends that the trial court

erred in ruling that appellee's Fifth Amendment right to counsel

was violated by continued interrogation after the invocation of

his rights.   We agree and reverse the ruling of the trial court

and remand for a trial consistent with this opinion.




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

     Appellee's hand was injured during an incident with police

on February 24, 1999.   He was taken to a hospital for surgery on

the injured hand.    The next day, appellee was interviewed in the

hospital about the incident by Detective McClelland of the

Prince William County Police Department.       After Detective

McClelland advised appellee of his Miranda rights, the following

exchange occurred:

          [Appellee]:    I'd rather have my lawyer.
                         Cause I'm not . . . I'm not
                         really.

          McClelland:    Okay.

          [Appellee]:    I'm on medication.     I don't
                         . . .

          McClelland:    I-I understand that Mr. Ball.
                         All right. Uh.

          [Appellee]:    What have I been charged with?

          McClelland:    You've been charged with
                         Attempt Capital Murder
                         (overriding conversation) . . .

          [Appellee]:    Attempt Capital Murder
                         (overriding conversation) . . .

          McClelland:    . . . and Malicious Wounding.

          [Appellee]:    Attempt Capital Murder?

          McClelland:    Right.

          [Appellee]:    And what is that?

          McClelland:    That's for trying to get the
                         officer's gun and what else are
                         you going to do with it, the
                         gun, if you're trying to

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                        take . . . if you're trying to
                        get it?

          [Appellee]:   I wasn't trying to get to an
                        officer's gun. I could have
                        grabbed.

          McClelland:   Well, that's what I need to
                        talk to you about.

          [Appellee]:   Then I'll talk to you without a
                        lawyer. 1

          McClelland:   Do what?

          [Appellee]:   I said, I'll talk to you
                        without a lawyer.

          McClelland:   You will talk to me without a
                        lawyer?

          [Appellee]:   Yes.

     At a suppression hearing, the trial judge ruled that

appellee's statement to McClelland was voluntary but should be

suppressed because the interrogation continued after appellee

invoked his Fifth Amendment right to counsel.

                           II.     ANALYSIS

          In order to insure that the Fifth Amendment
          right against compulsory self-incrimination
          is protected during the custodial
          interrogation of criminal suspects, the
          United States Supreme Court established a
          series of "procedural safeguards" that law
          enforcement authorities must adhere to when
          interviewing suspects in their custody. See
          Davis v. United States, 512 U.S. 452, 457,

     1
       While appellee argued at the suppression hearing that he
stated that he would talk "about" a lawyer, not "without" a
lawyer, the trial court, as trier of fact, ruled that the
statement was, "Then I'll talk to you without a lawyer." We,
therefore, accept the trial court's finding as one of historical
fact.

                                 - 3 -
          114 S. Ct. 2350, 2354, 129 L.Ed.2d 362
          (1994) (citing Michigan v. Tucker, 417 U.S.
          433, 443-44, 94 S. Ct. 2357, 2363-64, 41
          L.Ed.2d 182 (1974)); see also Mier v.
          Commonwealth, 12 Va. App. 827, 831, 407
          S.E.2d 342, 344-45 (1991). Compliance with
          these procedures is a "prerequisite[ ] to
          the admissibility of any statement made by a
          defendant" during custodial interrogation.
          Miranda[v. Arizona], 384 U.S. [436,] 476, 86
          S. Ct. [1602,] 1629 [, 16 L.Ed.2d 694
          (1966)]; see also Goodwin v. Commonwealth, 3
          Va. App. 249, 252, 349 S.E.2d 161, 163
          (1986).

Quinn v. Commonwealth, 25 Va. App. 702, 709-10, 492 S.E.2d 470,

474 (1997).

               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 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).

Id. at 710-11, 492 S.E.2d at 474-75.

     Under Edwards v. Arizona, 451 U.S. 477 (1981), "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."     Quinn, 25 Va. App. at 711,

492 S.E.2d at 475 (citations omitted).



                              - 4 -
       The determination of inadmissibility under Edwards involves

application of a three-part test.       See id. at 712, 492 S.E.2d at

475.

            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 (citations omitted).

                 In reviewing the trial court's [grant]
            of the motion to suppress, we view the
            evidence in the light most favorable to the
            [prevailing party], granting to it all
            reasonable inferences deducible therefrom.
            See Shears v. Commonwealth, 23 Va. App. 394,
            398, 477 S.E.2d 309, 311 (1996). 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. See id. Whether the defendant
            invoked his or her right to counsel, and
            thereafter knowingly and voluntarily waived
            that right, requires that we apply defined
            legal standards to the historical facts.
            See Quinn, 25 Va. App. at 712-13, 492 S.E.2d
            at 475-76.

Giles v. Commonwealth, 28 Va. App. 527, 532-33, 507 S.E.2d 102,

105 (1998).

                                - 5 -
     Although hospitalized, appellee was charged with attempted

capital murder and malicious wounding and was under guard by law

enforcement officers.   After receiving Miranda warnings from

Detective McClelland, appellee stated, "I'd rather have my

lawyer."   Under the first prong of the Edwards test, we find

that appellee invoked his right to counsel while in police

custody.

     Next, we address whether appellee initiated the

incriminating discussion with Detective McClelland.    Under the

Edwards test, appellee remained in constant custody and did not

have his lawyer present during his discussion with Detective

McClelland.   Therefore, in order for the statement to be

admissible, appellee must have initiated the conversation with

McClelland.

     The trial court ruled that the statement was inadmissible

because a defendant cannot reinitiate discussion with the police

unless there is a break in the defendant's contact with the

police.    We find no authority to support the trial court's

ruling nor did appellee cite any.

     In Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the

United States Supreme Court held that the defendant, who had

previously invoked his right to counsel, initiated further

conversation with the police by asking, "'Well, what is going to

happen to me now?'"   The Court wrote:



                                - 6 -
           While we doubt that it would be desirable to
           build a superstructure of legal refinements
           around the word "initiate" in this context,
           there are undoubtedly situations where a
           bare inquiry by either a defendant or by a
           police officer should not be held to
           "initiate" any conversation or dialogue.
           There are some inquiries, such as a request
           for a drink of water or a request to use a
           telephone that are so routine that they
           cannot be fairly said to represent a desire
           on the part of an accused to open up a more
           generalized discussion relating directly or
           indirectly to the investigation. Such
           inquiries or statements, by either an
           accused or police officer, relating to
           routine incidents of the custodial
           relationship, will not generally "initiate"
           a conversation in the sense in which that
           word was used in Edwards.

Id.   The Court, however, held that the defendant's question

"evinced a willingness and a desire for a generalized discussion

about the investigation; it was not merely a necessary inquiry

arising out of the incidents of the custodial relationship."

Id. at 1045-46.    The Court did not articulate any requirement

that there be a passage of time between the invocation of the

right to counsel and the defendant's initiation of conversation

with the police.

      In Giles, 28 Va. App. 527, 507 S.E.2d 102, we held that the

defendant, who had previously invoked his right to counsel,

initiated conversation with the police during booking procedures

by indicating that he was confused and did not understand the

charge against him.   We reasoned that the defendant's statements

that he was confused and did not understand and then his


                                - 7 -
surprise at being charged with robbery "fairly constituted an

invitation for Officer Royer to discuss with [the defendant] his

situation."   Id. at 535, 507 S.E.2d at 106.   We further stated

that the defendant's comments "were not necessary inquiries

incidental to the booking and custodial relationship."      Id.   It

is significant to note that the defendant in Giles invoked his

right to counsel, the police terminated the interview, and the

booking procedures, during which the defendant initiated the

conversation, began immediately thereafter.

     We find no support for the trial's court ruling that a

period of time must elapse before a defendant, who had

previously invoked his right to counsel, can initiate further

conversation with the police.   Instead, both federal and

Virginia cases hold that statements by a defendant that indicate

a willingness and a desire for a generalized discussion about

the investigation are sufficient to initiate conversation with

the police under Edwards.

     In this case, appellee invoked his right to counsel

whereupon the police cease interrogation.   Appellee then

immediately asked, "What have I been charged with?"   We find

that appellee's question was not a necessary inquiry of the

custodial relationship.   As in Giles, appellee's question

"fairly constituted an invitation" for Detective McClelland to

discuss appellee's situation.   Further, once Detective

McClelland told appellee that he was charged with attempted

                                - 8 -
murder, appellee asked, "And what is that?"    Appellee's request

for explanation cannot be characterized as anything other than a

generalized discussion about the investigation.

     The trial court found that appellee's waiver was voluntary,

so we do not address the third prong of the Edwards test.

     We, therefore, reverse the ruling of the trial court that

appellee's statements to Detective McClelland did not constitute

initiation of conversation because a period of time did not

separate the statements from appellee's invocation of the right

to counsel.   We, therefore, find that appellee initiated a

conversation with Detective McClelland during which he made

incriminating statements and that the waiver of his right to

counsel was voluntary.   Appellee's statements to Detective

McClelland are, therefore, admissible as evidence in a trial

consistent with this opinion.

                                              Reversed and remanded.




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