                                               Tuesday        23rd

             October, 2001.


Torie Devon Redmond,                                          Appellant,

against        Record No. 0762-00-1
               Circuit Court No. CR99-3244

Commonwealth of Virginia,                                     Appellee.


                          Upon a Rehearing En Banc

      Before Chief Judge Fitzpatrick, Judges Benton, Elder,
     Bray, Annunziata, Bumgardner, Frank, Clements, and Agee


                Edward W. Webb (Office of the Public
                Defender, on brief), for appellant.

                Leah A. Darron, Assistant Attorney
                General (Randolph A. Beales, Attorney
                General, on brief), for appellee.



             By unpublished opinion, a divided panel of this Court

reversed the appellant's conviction and remanded for a new

trial.    Redmond v. Commonwealth, No. 0762-00-1 (Va. Ct. App. May

22, 2001).    We stayed the mandate of that decision and granted

rehearing en banc.

             Upon a rehearing en banc, the stay of the May 22, 2001

mandate is lifted, and the judgment of the trial court is

reversed and remanded for a new trial in accordance with the

majority panel opinion.
          Judges Bray, Bumgardner, and Agee dissent for the

reasons set forth in the panel dissent.

          This order shall be certified to the trial court.


                          A Copy,

                               Teste:

                                          Cynthia L. McCoy, Clerk

                               By:

                                          Deputy Clerk




                              - 2 -
                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


TORIE DEVON REDMOND
                                            MEMORANDUM OPINION * BY
v.   Record No. 0762-00-1                 JUDGE JAMES W. BENTON, JR.
                                                 MAY 22, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    Alan E. Rosenblatt, Judge

             Edward W. Webb (Office of the Public
             Defender, on brief), for appellant.

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


     On this appeal, Torie Devon Redmond contends that the police

obtained a statement from him in violation of the Fifth Amendment

and that a trial judge erred in refusing to suppress the

statement.    For the reasons that follow, we reverse the conviction

and remand for a new trial.

                                  I.

     The facts pertaining to the motion to suppress are

essentially undisputed.    On May 7, 1999, the police arrested

Redmond for the murder of Gattis Bowling, Jr., and took Redmond to

an interview room.    The record contains a videotape and written


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


                                 - 3 -
transcript of the interrogation of Redmond by Detective

Christopher C. Molleen.     Prior to advising Redmond of his Miranda

rights, Detective Molleen made several comments including the

following:

             [DETECTIVE]: . . . . It's no miracle that
             you're down here. Okay? Um, we've been
             doing a lot of investigating here lately,
             you have seen us in the neighborhood for the
             last few days. Probably one of the worst
             things you can do is underestimate me or
             some the guys that are in here. Okay?

             [REDMOND]:   Hm Hmm.

             [DETECTIVE]: Keep that in mind. It's not
             pick on Torie Redmond day. I don't know
             Torie Redmond that well. Torie Redmond
             ain't never done anything to me. Okay? I'm
             not here to, uh, bring you down or make
             things tough on you, but we got some things
             that we need to get straight. And you know
             it's no miracle why you're here. Deep down
             you do. And we'll talk about it. You know,
             a lot of times in life you go out and do
             something and it can start off as one thing
             and end up another thing. And that's the
             bottom line. You can have the best
             intentions or the worst intentions, and
             things can happen quick and you get out of
             hand and things can happen. So, like I told
             you, you're not here by accident and if you
             listen to what I've got to say and make a
             smart decision. You're under arrest.
             You're in custody. You know what case I'm
             investigating, and that's what you're under
             arrest for. So, what I'm going to do is I'm
             going to advise you of your rights and we'll
             sit here and try to have an intelligent
             conversation. You just remember, you know,
             there's a lot, there's a lot of difference,
             there's a lot of differences in crimes.
             Okay? And this is a very serious crime and
             you don't want to leave serious crimes up to
             speculation. And so I could speculate and
             make it into one thing. We could speculate,
                                    - 4 -
          it would be another thing when actually it's
          something else. Okay, you can speculate
          that it's very serious or a bad situation,
          an accidental situation or could look very
          cruel. You know what I'm saying? Does that
          make sense?

          [REDMOND]:   Pretty much.

          [DETECTIVE]: Well, I'm telling you. And
          I'll tell you a couple examples exactly
          what. You have the right to remain silent.
          Anything you say can be used against you in
          Court. You have the right to talk to a
          lawyer and have him present with you while
          you are being questioned. If you cannot
          afford to hire a lawyer, one will be
          appointed to represent you before any
          questioning, if you wish. You can decide at
          any time to exercise these rights, not
          answer any questions or make any statements.
          Do you understand?

          [REDMOND]:   Yeah.

     For several minutes after this exchange, the detective made

other lengthy comments to Redmond indicating he could prove

Redmond's involvement and urging Redmond to respond.

          [DETECTIVE]: You have to tell the truth and
          if you don't try to hide something, I'm
          going to prove you're hiding it. And,
          ultimately, you know, you're the one that's
          going to suffer the consequences, not me.

          [REDMOND]: I don't want to seem arrogant or
          nothing like that.

          [DETECTIVE]:   I don't want, Tory.

          [REDMOND]:   These are some pretty deep
          charges.

          [DETECTIVE]: Listen to what I got to say.
          I don't think. I don't want you to seem
          arrogant. Okay. I don't want you to seem
          arrogant. I want you to do the best thing
          for yourself. And the best thing for
                             - 5 -
             yourself is you need to take some of the
             heat off your back. Yeah, they are very
             serious charges. This is the only
             opportunity you're ever going to talk and
             give your side. Period. This is . . .

             [REDMOND]: Can I speak to my lawyer? I
             can't even talk to lawyer before I make any
             kinds of comments or anything?

             [DETECTIVE]: You can do anything you like,
             but I'm telling, I'm telling you like this.
             You have the freedom to do anything you
             want. You have the freedom to go to sleep
             right now if you want to do that. Okay?
             You have the freedom to sit here and talk to
             me. Okay? The point is and what I'm trying
             to tell you is, this is your opportunity;
             this is your time. There ain't tomorrow,
             there ain't later. Okay? There's not
             later. There is no later. And I'm trying,
             I'm trying to give you because you are a 24
             year old man the opportunity to help
             yourself out a little bit.

After several minutes of further lengthy comments by the

detective, Redmond confessed his involvement in the murder of

Bowling.

     After considering the videotape of the interrogation, the

transcript of the interrogation, and the argument of counsel, a

judge ruled prior to trial that Redmond's statement was

"equivocal; and, therefore, it's not a clear invoking of his

rights."   Thus, the judge denied the motion to suppress the

statement.    Following trial, a jury convicted Redmond of first

degree murder.    This appeal followed.




                                 - 6 -
                                II.

     "The warnings mandated by [Miranda v. Arizona, 384 U.S.

436, 467-73 (1966)], as a prophylactic means of safeguarding

Fifth Amendment rights, require that a person taken into custody

be advised immediately that he has the right to remain silent,

that anything he says may be used against him, and that he has a

right to retained or appointed counsel before submitting to

interrogation."   Doyle v. Ohio, 426 U.S. 610, 617 (1976)

(citation omitted).   The police must explain these rights to the

accused "before questioning begins."   Davis v. United States,

512 U.S. 452, 457 (1994).   After the police explain these

rights, "[i]f the individual states that he wants an attorney,

the interrogation must cease until an attorney is present."

Miranda, 384 U.S. at 474.

     "[T]he Court fashioned in Miranda the rigid rule that an

accused's request for an attorney is per se an invocation of his

Fifth Amendment rights requiring that all interrogation cease."

Fare v. Michael C., 442 U.S. 707, 719 (1979).   See also Edwards

v. Arizona, 451 U.S. 477, 485-86 (1981).

          [T]he test for determining whether the
          accused invoked the right to counsel is an
          objective one. The Court must determine
          whether the accused "articulate[d] his
          desire to have counsel present sufficiently
          clearly that a reasonable police officer in
          the circumstances would understand the
          statement to be a request for an attorney."



                               - 7 -
McDaniel v. Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851,

853 (1999) (en banc) (quoting Davis, 512 U.S. at 459).

     When the detective began the interrogation, he did not

immediately give Redmond the Miranda warnings and never inquired

whether Redmond wished to make a statement or waive his right to

counsel.   Instead, he first began by telling Redmond he was "not

[there] by accident" and that Redmond should "make a smart

decision."   He then informed Redmond that he was "going to

advise [Redmond] of [his] rights and we'll sit here and try to

have an intelligent conversation."   At no time did the detective

inquire of Redmond whether Redmond wished to waive his Miranda

rights and speak to him.   The implicit message in the

interrogation prior to the giving of the Miranda warnings is

that they will have a "conversation" after the reading of his

rights.    Indeed, that is precisely what the detective sought to

do until Redmond said "Can I speak to my lawyer?   I can't even

talk to a lawyer before I make any kind of comments or

anything?"

     Redmond's statement "Can I speak to my lawyer" is an

unambiguous request to talk to his counsel and was directly

responsive to the detective's earlier warning that "You have the

right to talk to a lawyer."   If there could have been any doubt

about Redmond's intention, his further request would have

alerted any reasonable police officer of his purpose.    When he

said, "I can't even talk to a lawyer before I make any kind of
                              - 8 -
comments or anything?," he reinforced his inability to deal with

the interrogation without counsel.

     Without any doubt, the detective's response to Redmond

demonstrates that he understood Redmond's statements to be a

request for counsel.    Rather than stopping the interrogation,

the detective made a lengthy response, which began with the

following:

             [DETECTIVE]: You can do anything you like,
             but I'm telling, I'm telling you like this.
             You have the freedom to do anything you
             want. You have the freedom to go to sleep
             right now if you want to do that. Okay?
             You have the freedom to sit here and talk to
             me. Okay? The point is and what I'm trying
             to tell you is, this is your opportunity;
             this is your time. There ain't tomorrow,
             there ain't later. Okay? There's not
             later. There is no later. And I'm trying,
             I'm trying to give you because you are a 24
             year old man the opportunity to help
             yourself out a little bit.

Thus, instead of honoring the request as required by Miranda,

Edwards, and their progeny, the detective deflected Redmond's

request with the generalized notion that Redmond could "do

anything you like."    He then sought to persuade Redmond "to help

[him]self" and talk without counsel.     He continued the

interrogation even though Redmond did not waive his Miranda

rights.   We hold that in so doing the detective gained Redmond's

statement in violation of his Fifth Amendment rights.




                                 - 9 -
     Redmond's statement included his confession that he stabbed

the deceased and described the circumstances of the stabbing.

The introduction of that statement at trial was not harmless.

Even if "the other evidence amply supports the jury's verdicts

[the error is not harmless when] the disputed testimony may well

have affected the jury's decision."    Catera v. Commonwealth, 219

Va. 516, 519, 248 S.E.2d 784, 786 (1978).    Accordingly, we

reverse the conviction and remand for a new trial.

                                      Reversed and remanded.




                             - 10 -
Bray, J., dissenting.


               In the years since Miranda, it has
          become well established that once an accused
          expresses a desire to exercise his right to
          counsel, authorities may not further
          interrogate the accused until counsel is
          present unless the accused initiates further
          conversation or exchanges with the
          authorities.

Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d 112, 114

(1995) (citing Edwards v. Arizona, 451 U.S. 477 (1981)).

However, the Virginia Supreme Court "has consistently held that

a clear and unambiguous assertion of the right to counsel is

necessary to invoke the Edwards rule."    Id. at 266, 462 S.E.2d

at 115 (emphasis added); Green v. Commonwealth, 27 Va. App. 646,

653, 500 S.E.2d 835, 838 (1998).    Thus, "if a suspect makes a

reference to an attorney that is ambiguous or equivocal in that

a reasonable police officer in light of the circumstances would

have understood only that the suspect might be invoking the

right to counsel," questioning need not cease.     Davis v. United

States, 512 U.S. 452, 459 (1994) (emphasis added).

     In undertaking an Edwards/Davis analysis, a trial court

must apply an objective test to determine if an accused

"'articulate[d] his desire to have counsel present sufficiently

clearly'" for a "'reasonable police officer'" to "'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)

(quoting Davis, 512 U.S. at 459).    "[W]hether an accused
                             - 11 -
requested counsel is . . . a factual determination that will not

be disturbed on appeal unless clearly erroneous."    Mills v.

Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992)

(citations omitted) (emphasis added).

     Here, during an ore tenus hearing to address defendant's

motion to suppress, the trial court viewed the videotape of the

subject interrogation, together with a transcript of the

exchange.   Thereafter, following argument of counsel and a

review of relevant case law, the court expressed "no problem at

all" finding defendant's query to Detective Molleen, "Can I

speak to my lawyer?," "somewhat ambiguous."   A review of the

record discloses no clear error in the court's factual finding.

     When defendant inquired, "Can I speak to my lawyer?,"

followed, without pause or interruption, by, "I can't even talk

to [a] lawyer before I make any kinds of comments or anything?,"

he was, perhaps, seeking clarification or confirmation of the

Miranda right to counsel.    Accordingly, Molleen perceived a

question and, in response, assured defendant, "You can do

anything you like . . . .   You have the freedom to do anything

you want," followed by additional comments that were neither

coercive nor misleading.    Thus, simply stated, defendant was

properly advised of his Miranda rights, asked two related

questions of Molleen, both of which were properly answered, and,

without further inquiry, confessed to the offense.   Such


                               - 12 -
evidence does not reflect an unambiguous, unequivocal invocation

of the right to counsel.

     I, therefore, respectfully dissent.




                             - 13 -
