                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Petty
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1451-09-1                             CHIEF JUDGE WALTER S. FELTON, JR.
                                                                 NOVEMBER 3, 2009
KYHEIM DELANGO TUCKER


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                               Christopher W. Hutton, Judge

                 Rosemary V. Bourne, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellant.

                 Ronald L. Smith (Smith Law Firm, on brief), for appellee.


       Pursuant to Code § 19.2-398, the Commonwealth appeals the pre-trial judgment of the

trial court suppressing statements Kyheim Delango Tucker (“Tucker”) made to police officers.

On appeal, the Commonwealth contends the trial court erred in finding that Tucker did not

knowingly and intelligently waive his previously invoked right to counsel. For the reasons that

follow, we affirm the trial court’s ruling suppressing the statements made by Tucker.

                                          BACKGROUND

       On appeal of an order granting a motion to suppress, we view the evidence in the light

most favorable to the accused, the prevailing party below, granting to the evidence all reasonable

inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991). We review the trial court’s findings of historical fact only for clear

error. Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996). However,


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
we review de novo the trial court’s application of defined legal standards to the particular facts of

a case. Ornelas v. United States, 517 U.S. 690, 697 (1996).

       So viewed, the evidence established that Tucker was taken into custody on December 31,

2008, on a weapons charge. 1 Tucker was placed in a six feet by six feet windowless interview

room at 11:55 a.m. He was permitted to have bathroom breaks and given cigarettes and water.

At 4:46 p.m., after interviewing a suspected co-defendant and a witness related to a murder and

robbery, Detectives Mike Wisniewski and Kendall Brown began a videotaped interview of

Tucker. 2

       Tucker was advised of his Miranda 3 rights and signed a Miranda rights acknowledgement

form. At 4:52 p.m., Tucker asked if the detectives “could call [his] lawyer for him.” When

Detective Wisniewski asked Tucker, “what are you saying? You want your lawyer,” the video

of the interrogation shows Tucker affirmatively nodding his head. The detectives then left the

interview room at 4:53 p.m.

       At 4:59 p.m., the detectives returned to inform Tucker he was being charged with murder.

They asked Tucker if there were any family members that should be contacted because he was

“going to be [there] for a little while.” Tucker asked for his grandmother and father to be

contacted, and the detectives started to leave the room. At 5:01 p.m., after an inaudible exchange

between the detectives and Tucker, Detective Wisniewski asked Tucker, “ok, so you’re saying

you want to talk with us without your lawyer present?” Tucker responded, “yeah man, I don’t



       1
         At the suppression hearing, Detective Wisniewski testified that Tucker, a convicted
felon, was taken into custody based on a reliable informant’s statement that he had seen Tucker
with a pistol several days earlier.
       2
         The video recording of Tucker’s interrogation was admitted during the suppression
hearing and made part of the record.
       3
            Miranda v. Arizona, 384 U.S. 436 (1966).
                                                -2-
understand none of this shit.” During the ensuing interrogation, Tucker denied any involvement

in the murder and robbery.

       At 5:53 p.m., Tucker told Detective Brown, “no disrespect to your profession but I rather

have my lawyer right here.” The video shows Detective Brown sitting right in front of Tucker

staring at him without speaking. Detective Brown then informed Tucker, “I need you to be

perfectly clear.” At 5:54 p.m., Tucker slowly and clearly repeated, “I want to see my

grandmother and my lawyer.” Detective Brown left the interview room, leaving Tucker alone in

the room.

       At 6:00 p.m., the detectives opened the door to the interview room, but turned and left

without speaking to Tucker. Tucker then knocked on the door and, at 6:02 p.m., asked how long

he would have to stay in the room alone. The detectives informed him that they could not speak

to him because he had requested his attorney and shut the door. At 6:19 p.m., after pacing

around the interview room for over 15 minutes, Tucker knocked on the door and asked where the

detectives were. When the detectives returned to the interview room at 6:21 p.m., Tucker was

balled up in the corner of the room with his shirt over his head sobbing, and said, “[it] wasn’t my

fault man, [it] wasn’t my fault man.” Tucker then said, “he had a gun too, he had a gun too.”

Without further inquiry from the detectives regarding Tucker’s previously invoked right to

counsel, the detectives began to question Tucker, who subsequently made incriminating

statements. That interrogation lasted from 6:21 p.m. until 8:43 p.m., when Tucker again

requested counsel. At 11:24 p.m., Tucker was handcuffed and removed from the interview

room. Tucker was charged with second-degree murder, robbery, use of a firearm (two counts),

and possession of a firearm after having been convicted of a felony.




                                               -3-
                                           ANALYSIS

       The Commonwealth conceded on brief that Tucker twice “clearly, unambiguously and

unequivocally asserted his right to counsel during a custodial interrogation.” Ferguson v.

Commonwealth, 278 Va. 118, 124, 677 S.E.2d 45, __ (2009). The Commonwealth asserts that,

even though Tucker twice clearly invoked his right to counsel, he knowingly and intelligently

waived his right to counsel, when he said, “[it] wasn’t my fault man, [it] wasn’t my fault man”

and “he had a gun too, he had a gun too.” The Commonwealth argues those statements

demonstrated Tucker’s intent to open up a “generalized discussion” relating to the investigation.

Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). We disagree.

       “Absent a knowing and intelligent waiver of the Fifth Amendment right against

self-incrimination and the Sixth Amendment right to the assistance of legal counsel, a confession

made by a suspect during in-custody interrogation is inadmissible in evidence against him.”

Harrison v. Commonwealth, 244 Va. 576, 580, 423 S.E.2d 160, 162 (1992). “[A]n 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.” Edwards

v. Arizona, 451 U.S. 477, 484-85 (1981).

               Thus, the prophylactic 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.

Arizona v. Roberson, 486 U.S. 675, 681 (1988) (quoting Miranda, 384 U.S. at 467).



                                               -4-
        Once the accused requests counsel, police should “scrupulously” honor the request.

Michigan v. Mosley, 423 U.S. 96, 104 (1975). “[A] defendant who does not want to speak to the

police without counsel present need only say as much when he is first approached and given the

Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by

later requests is prohibited.” Montejo v. Louisiana, 129 S. Ct. 2079, 2090 (2009). “Only if the

accused initiates further ‘communication, exchanges, or conversations with the police,’ and only

if those communications result in the accused changing his or her mind and freely and

voluntarily waiving the right to counsel, may the police resume interrogation without violating

the Edwards rule.” Ferguson v. Commonwealth, 52 Va. App. 324, 335, 663 S.E.2d 505, 510

(2008) (quoting Roberson, 486 U.S. at 682), aff’d, 278 Va. 118, 677 S.E.2d 45 (2009); see also

Zektaw v. Commonwealth, 278 Va. 127, 139, 677 S.E.2d 49, __ (2009) (holding “I’d really like

to talk to a lawyer” was a clear invocation of right to counsel that was not thereafter made

ambiguous by defendant’s additional statement “Oh my God, oh, my Jesus, why?”).

        “[T]he inquiry whether a waiver of Miranda rights was made knowingly and intelligently

is a question of fact, and the trial court’s resolution of that question is entitled on appeal to a

presumption of correctness.” Harrison, 244 Va. at 581, 423 S.E.2d at 163.

                [The trial court] evaluates the credibility of the witnesses, resolves
                any conflicts in the testimony, and weighs the evidence as a whole.
                The court must decide whether the defendant knowingly and
                intelligently relinquished and abandoned his rights. The court’s
                determination is a question of fact based upon the totality of the
                circumstances. This factual finding will not be disturbed on appeal
                unless plainly wrong.

Id. (quoting Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429-30 (1985)).

“[I]n at least some cases waiver can be clearly inferred from the actions and words of the person

interrogated.” North Carolina v. Butler, 441 U.S. 369, 373 (1979); see also Harrison, 244 Va. at

584, 423 S.E.2d at 165. The inference must be made on “‘the particular facts and circumstances


                                                  -5-
surrounding that case, including the background, experience, and conduct of the accused.’”

Butler, 441 U.S. at 374-75 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A waiver is

knowing and intelligent when made “‘with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.’” Rodriguez v. Commonwealth,

40 Va. App. 144, 156-57, 578 S.E.2d 78, 83 (2003) (quoting Moran v. Burbine, 475 U.S. 412,

421 (1986)).

       We find the trial court’s factual determination that Tucker did not knowingly,

intelligently, and voluntarily waive his previously invoked right to counsel is amply supported by

the record on appeal. Tucker was left alone in an interview room for almost five hours prior to

his first request for counsel. Six minutes after Tucker requested counsel, Detectives Wisniewski

and Brown informed Tucker he would be charged with murder. After talking with the detectives

about the situation, Tucker invoked his right to counsel a second time at 5:53 p.m. Once Tucker

requested counsel, the detectives should have “scrupulously honored” that request. Mosley, 423

U.S. at 104.

       At 6:02 p.m., Tucker asked the detectives how long he would have to stay in the

interview room by himself and was informed that they could not speak to him because he had

requested counsel. 4 Tucker asked for water and food and asked where the detectives were for a

second time. At 6:21 p.m., after Tucker had been in the interview room for almost six and a half

hours, he was in tears and said, “[it] wasn’t my fault man, [it] wasn’t my fault man,” when the

detectives returned. Without further inquiry as to whether he desired to have counsel present, the

detectives immediately began to question him regarding his involvement in the shooting.

               [T]his encounter was one continuous custodial interrogation
               conducted in such a manner as to deliberately disregard a clear,
               unambiguous and unequivocal invocation of the right to counsel

       4
         Interestingly, the detectives earlier spoke with Tucker at 4:59 p.m., despite his request
for counsel a mere seven minutes earlier.
                                                 -6-
               and coerce [the accused] to incriminate himself. The person
               subject to interrogation does not have to repeat his invocation of
               the right to counsel - once is enough if it is clear, unambiguous and
               unequivocal as it is in this case.

Ferguson, 278 Va. at 126, 677 S.E.2d at __. Furthermore, Tucker’s statements, much like those

made by the accused in Zektaw, did not evince a knowing, intelligent, and voluntary waiver of

his right to counsel. The trial court’s factual determination that Tucker did not knowingly and

intelligently waive his right to counsel was not plainly wrong, as the Commonwealth failed to

show that Tucker was fully aware “‘of both the nature of the right being abandoned and the

consequences of the decision to abandon it.’” Rodriguez, 40 Va. App. at 156, 578 S.E.2d at 83

(quoting Moran, 475 U.S. at 421).

       For these reasons, we affirm the trial court’s granting of Tucker’s motion to suppress and

remand for further proceedings consistent with this opinion should the Commonwealth be so

advised.

                                                                    Affirmed and remanded.




                                               -7-
