                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Clements
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0390-09-2                                    JUDGE WILLIAM G. PETTY
                                                                    JULY 21, 2009
EDDIE JAMES EDWARDS


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                  T. J. Markow, Judge

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

                 Cassandra M. Hausrath, Assistant Public Defender (Office of the
                 Public Defender, on brief), for appellee.


       The Commonwealth appeals the trial court’s determination that Eddie James Edwards’ 1

Miranda rights were violated, and the resulting suppression of his statement to the police. The

Commonwealth argues that Edwards never made an unequivocal assertion of his right to counsel,

but also contends that the detectives “nevertheless terminated the interview, but the defendant

thereafter reinitiated communication with the police.” As explained in this opinion, although we

agree with the trial court that Edwards unequivocally invoked his right to counsel, we also agree

with the Commonwealth that Edwards later reinitiated communication with the police and properly

waived his Miranda rights. Accordingly, we reverse the judgment of the trial court.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Edwards is charged with one count of robbery in violation of Code § 18.2-58, two
counts of using a firearm in the commission of a felony in violation of Code § 18.2-53.1, one
count of attempted murder in violation of Code § 18.2-32, and two counts of discharging a
firearm within an occupied dwelling or building in violation of Code § 18.2-279.
       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

We view those facts and incidents in the “light most favorable” to Edwards, as the prevailing

party below, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003), and we

grant to him all fair inferences flowing therefrom, Coleman v. Commonwealth, 52 Va. App. 19,

21, 660 S.E.2d 687, 688 (2008). We note that the parties do not dispute the facts concerning

Edwards’ interaction with the police. The facts relevant to this determination appear in the

record in both a DVD of the officers’ interview with Edwards, which we viewed, and a

transcription of that interview.

       In addressing the substantive issues of this appeal, we review the trial court’s findings of

fact for clear error, and review de novo the trial court’s application of defined legal standards to

the particular facts of this case. See Ornelas v. United States, 517 U.S. 690, 697 (1996); Shears

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

       A criminal suspect has the right to have an attorney present during custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 469-73 (1966). In Edwards v. Arizona, 451

U.S. 477 (1981), the Court “extended the principles set forth in Miranda to subsequent

interrogation,” Commonwealth v. Gregory, 263 Va. 134, 146, 557 S.E.2d 715, 722 (2002), by

holding that, after a suspect “expressed his desire to deal with the police only through counsel,”

interrogation must cease until either his counsel has been made available to him or until “the

accused himself initiates further communication, exchanges, or conversation with the police.”

Edwards, 451 U.S. at 484-85. If the accused makes a “custodial confession” during an

interrogation, that confession is inadmissible at trial unless the accused was advised of, and




                                                -2-
waived, his Fifth Amendment rights: including the presence and assistance of counsel during

custodial interrogation. Missouri v. Seibert, 542 U.S. 600, 608 (2004).

        To determine the admissibility of a statement under the Edwards rule, we apply a

three-part analysis. The first step in this analysis is determining “whether the accused

unequivocally invoked his or her right to counsel.” Giles v. Commonwealth, 28 Va. App. 527,

532, 507 S.E.2d 102, 105 (1998). The second step is to “determine whether the accused, rather

than the authorities, reinitiated further discussions or meetings with the police” after that

invocation. Id. The third step in our analysis is to determine whether, after the accused

reinitiated communication with the police, he made a “knowing and intelligent waiver” of the

previously invoked right to counsel. Id.; see also North Carolina v. Butler, 441 U.S. 369 (1979).

                                             I. Invocation

        Initially, we determine that Edwards clearly invoked his right to counsel. Where, as here,

there is no dispute regarding the content of the accused’s statements to the police, our “‘appellate

consideration of the circuit court’s denial of [the defendant’s] motion to suppress is restricted to a de

novo review of the legal issue whether [his] words, taken in context, were sufficient to invoke his

right to counsel.’” Zektaw v. Commonwealth, 278 Va. 127, 135, 677 S.E.2d 49, ___ (2009)

(alterations in original) (quoting Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d 579, 584

(2005)).

        An accused’s words are legally sufficient to invoke his right to counsel when they express a

request for counsel that is “clear, unambiguous, and unequivocal.” Id. at 136, 677 S.E.2d at ___

(citing Davis v. United States, 512 U.S. 452, 469 (1994)). A request for counsel is “sufficiently

clea[r]” when “a reasonable police officer in the circumstances would understand the statement to

be a request for an attorney.” Id. Our Supreme Court has explored the types of requests that are

sufficiently clear on many occasions. See id. at 136-37, 677 S.E.2d at ___ (collecting cases).

                                                  -3-
        Most recently, our Supreme Court held that an accused’s statement “Right, and I’d really

like to talk to a lawyer because this—oh my God, oh my Jesus, why?” was a sufficiently clear

invocation of his right to an attorney during custodial interrogation because (1) his request was

made shortly “after he completed his rights waiver form and came as a response to [an officer’s]

question for him to tell his side of the story”; (2) the accused was not “asking the police to clarify

his rights”; (3) his request was not for a person other than a lawyer; (4) he “did not state he might

want an attorney”; and (5) his statement did not express a mere “‘reservation about the wisdom of

continuing the interrogation without consulting a lawyer.” Id. at 138, 677 S.E.2d at ___ (internal

quotation marks and citations omitted).

        Here, Edwards talked with the police for some period of time and requested that his mother

be present at various times during the interrogation. However, at one point, Edwards said: “I’m

[sic] just want to see a lawyer.” One of the interrogating officers replied, “Okay,” and Edwards

continued, “I do want to talk to y’all though but I just want to see a lawyer, I don’t want y’all to go

nowhere. Is that asking too much?” At that point, the officers explained that all discussions with

them would cease, and would only recur when Edwards’ attorney was present. One of the officers

explained to Edwards that, based on his statements, the officer had “to assume that you prefer to

have a lawyer [here] and not [talk] to us now because we can’t go back and forth, man. Cause [sic]

if you want to talk to us you talk to us, if you don’t that’s fine, we’re fine with it either way.” The

officers left the room for approximately two minutes, and upon their return began asking Edwards

routine booking questions.

        Based on all of the totality of the circumstances related above, we conclude that the

statement “I’m [sic] just want to see a lawyer . . . I do want to talk to y’all though but I just want to

see a lawyer, I don’t want y’all to go nowhere. Is that asking too much?” was sufficiently clear to

invoke Edwards’ right to counsel. Edwards’ statement was unequivocal—he stated that he wanted

                                                   -4-
to see a lawyer. And, while Edwards asked whether it was “asking to much” for the officers to

remain in the room, that statement does not undo his prior invocation of counsel. Like Zektaw’s

petition to the Almighty, Edwards’ question to the officers did “not withdraw or negate the [earlier]

clear assertion of his right to counsel . . . .” Id. at 139, 677 S.E.2d at ___.

                                              II. Reinitiation

        Our inquiry does not, however, end with the determination that the accused invoked

counsel. Instead, having established the first step of the Edwards test, we move on to the second:

whether the accused reinitiated the communication with the police that eventually led to his

confession. After the invocation of the right to counsel, “further interrogation of the accused should

not take place ‘unless the accused himself initiates further communication, exchanges, or

conversations with the police.’” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (plurality

opinion) (quoting Edwards, 451 U.S. at 485). This is “a prophylactic rule, designed to protect an

accused in police custody from being badgered by police officers . . . .” Id.; see also Montejo v.

Louisiana, 129 S. Ct. 2079, 2085 (2009). Accordingly, “before a suspect in custody can be

subjected to further interrogation after he requests an attorney there must be a showing that the

suspect himself initiates dialogue with the authorities.” Bradshaw, 462 U.S. at 1045 (internal

quotation marks and citations omitted).

        In Bradshaw, the Supreme Court concluded that the accused’s question, “well, what’s going

to happen to me now?” reinitiated further conversation with the police. 462 U.S. at 1045-46. But,

not every statement by an accused or an officer signals the resumption of communication:

                “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 the accused to open up a more
                                                   -5-
                generalized discussion relating directly or indirectly to the
                investigation. Such inquiries or statements, by either an accused or
                a police officer, relating to some incidents on the custodial
                relationship, will not generally ‘initiate’ a conversation in the sense
                in which the word was used in Edwards.”

Giles, 28 Va. App. at 534, 507 S.E.2d at 106 (quoting Bradshaw, 462 U.S. at 1045).

        Here, after Edwards invoked his right to counsel, the officers moved on from

interrogating him to asking him routine booking questions, which is, of course, permissible. See

Watts v. Commonwealth, 38 Va. App. 206, 215, 562 S.E.2d 699, 704 (2002) (“‘Police words or

actions normally attendant to arrest and custody do not constitute interrogation.’” (quoting

Wright v. Commonwealth, 2 Va. App. 743, 746, 348 S.E.2d 9, 12 (1986))); see also Foster v.

Commonwealth, 8 Va. App. 167, 174, 380 S.E.2d 12, 16 (1989) (noting that Edwards does not

prohibit routine communication between a suspect and police officers). During the booking

process, Edwards asked whether he would be entitled to bond; how much “time” he was likely to

serve; whether he would have a jury; and once again asked for his mother. While the officers

responded to Edwards’ inquiries, they did not ask him any questions other than routine booking

questions at that time. However, at one point during the booking process Edwards said, apropos of

nothing, “What [sic] me to tell you the story, what really happened? You wanna [sic] know? You

can hear me, right?” When the police officer, who was completing the booking paperwork, did not

respond, Edwards said, “I say what you want me to say, you gotta [sic] ask the questions so I can go

head get it over with man . . . .” It was only then that the interrogation resumed.

        We hold that Edwards’ statements to the police offering to tell his story and inviting the

officers to “ask the questions” evidence “a desire . . . to open up a more generalized discussion

relating directly or indirectly to the investigation.” Bradshaw, 462 U.S. at 1045. Edwards’

statements were completely unrelated to the booking process, and were motivated by his desire “get

it over with” and “[see his] little nephews before they get [sic] 30 years old.” Moreover, as the trial

                                                 -6-
court found, there is no indication in the record that the officers badgered Edwards into reinitiating

conversation with them. Indeed, the officer with whom Edwards was speaking was so engrossed in

the booking paperwork that he had to ask Edwards to repeat himself when Edwards began to give

his statement. Accordingly, we hold that Edwards reinitiated communication with the police.

                                              III. Waiver

        Finally, as the third step in our Edwards analysis, we must decide whether the accused

knowingly and intelligently waived his previously invoked right to counsel. Giles, 28 Va. App. at

535, 507 S.E.2d at 105. Here, while the trial court found that the police did not engage in any

coercive behavior 2 during the interrogation, it also found that Edwards did not “knowingly or

intentionally waiv[e] his right to an attorney . . . .” Whether a waiver “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 v. Commonwealth, 244 Va. 576, 581, 423

S.E.2d 160, 163 (1992). Thus, the issue on appeal is whether the evidence, viewed in the light

most favorable to Edwards, supports this finding. In reviewing this issue, “we must review the

entire exchange between appellant and the officers.” Rashad v. Commonwealth, 50 Va. App.

528, 536, 651 S.E.2d 407, 411 (2007) (citing Medley v. Commonwealth, 44 Va. App. 19, 37,

602 S.E.2d 411, 417 (2004) (en banc) (noting that a court must consider the totality of the

circumstances before properly determining whether Miranda rights have been waived)).

        While this case does not involve an express waiver of Miranda rights after Edwards

reinitiated communication with the police, it is well settled that “waiver can be clearly inferred


        2
          This case is therefore distinguishable from our Supreme Court’s recent decision in
Commonwealth v. Ferguson, 276 Va. 118, 677 S.E.2d 45 (2009). That decision turned on the
officers’ coercive behavior: “Whatever the significance of Ferguson’s comments that broke the
silence, they were the product of the coercive interrogation and environment created by police.
Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of
communication and subsequent waiver of the right to counsel.” Id. at 125, 677 S.E.2d at ___.

                                                  -7-
from the actions and words of the person interrogated.” Butler, 441 U.S. at 373; see also

Harrison, 244 Va. at 584, 423 S.E.2d at 165. This inference must be made on “the particular

facts and circumstances surrounding that case, including the background, experience, and

conduct of the accused.” Butler, 441 U.S. at 374 (citations omitted). A waiver is knowing and

intelligent when it is 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, 578 S.E.2d 78, 83 (2003).

       The facts of this case, even viewed in the light most favorable to Edwards, do not support

the trial court’s determination that Edwards’ waiver was not knowing and intelligent. Edwards was

twenty years old, had his GED, and had some familiarity with the criminal justice system. The

record shows that the officers properly advised Edwards of his Miranda rights at the outset of the

interview. The officers discussed his Miranda rights 3 with him, and he indicated that he understood

those rights. Edwards then signed a waiver form signifying that he waived his rights. However,

Edwards later invoked those rights—a fact that clearly establishes he understood the nature of his

rights—and, interrogation ceased. After sitting and muttering to himself for several minutes while

the officer who was still in the room was working on booking paperwork, Edwards reinitiated

conversation with the officer because he wanted “to get it over with” and “[see his] little nephews

before they get [sic] 30 years old.” The record shows that all of this activity took place within

approximately one hour.

       Furthermore, this case does not involve some unclear or hesitant behavior on the accused’s

part in reinitiating communication with the police. See Wyrick v. Fields, 459 U.S. 42, 48 (1982)


       3
          The officers explained Edwards’ rights to him several times throughout the interview.
After Edwards signed the waiver form, and before he invoked his right to have an attorney
present, the officers stated the following: “Do you want a lawyer”; “Now, if you want a lawyer
we get you a lawyer”; “We go stop, we ain’t go talk to you no more, it’s simple as that. If you
don’t want to talk to us and you want a lawyer we go stop right now [sic].”
                                               -8-
(“[T]he totality of the circumstances, including the fact that the suspect initiated the questioning,

is controlling” when evaluating whether a waiver of Miranda rights was knowing and

intelligent.” (emphasis added)). Edwards reinitiated communication with the officer by explicitly

asking if the officer heard him, offering to tell him his story, and requesting that the officer ask him

questions. Thus, “as his dialog with the officers makes clear, there is no question that [Edwards]

was aware of the nature of his [Fifth Amendment rights] and the potential consequences of

abandoning [them].” Medley, 44 Va. App. at 38, 602 S.E.2d at 420. Even viewing the facts in the

light most favorable to Edwards, the evidence does not support a conclusion that Edwards made

anything but a knowing and intelligent waiver of his Miranda right to have an attorney present.

        Based on the foregoing discussion, we conclude that while Edwards unequivocally invoked

his Fifth Amendment right to counsel during custodial interrogation, he reinitiated communication

with the police and voluntarily, knowingly, and intelligently waived his right to counsel. Therefore,

we reverse the trial court’s grant of Edwards’ motion to suppress, and remand for further

proceedings consistent with this opinion.

                                                                        Reversed and remanded.




                                                  -9-
