                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 2937-02-2                JUDGE ROBERT J. HUMPHREYS
                                                MAY 6, 2003
LAJUAN JOSEA DAVIS



              FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
                   James E. Kulp, Judge Designate

            Kathleen B. Martin, Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellant.
            Charles J. Kerns, Jr. (James C. Breeden;
            McKerns & Hill; Hubbard, Breeden & Terry, on
            brief), for appellee.


     The Commonwealth of Virginia appeals a decision of the

trial court granting LaJuan Josea Davis' motion to suppress

evidence pertaining to his indictment for murder.    The

Commonwealth contends the trial court erred in finding that the

statement Davis provided to police was obtained in violation of

Davis' Miranda 1 rights.   For the reasons that follow, we affirm

the decision of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
     1
         Miranda v. Arizona, 384 U.S. 436 (1966).
                                       I.

     In reviewing the ruling of a trial court on a motion to

suppress, we "consider the evidence in the light most favorable

to the prevailing party below."    Commonwealth v. Rice, 28

Va. App. 374, 377, 504 S.E.2d 877, 878 (1998).

     On December 1, 2000, Davis was arrested in Baltimore,

Maryland, for a murder committed several months earlier in

Maryland.    Davis was brought to the homicide unit at the

Baltimore police headquarters.    Once at police headquarters, at

about 11:00 or 11:30 a.m., Davis was interviewed by Detective

Dennis Raftery of the Baltimore Police Department.   Detective

Raftery told Davis that he wanted to talk only about the

Maryland offense.   Detective Raftery then read Davis his Miranda

rights.   Davis asserted his right to counsel at that time, and

Raftery ended the interview.

     Because Detective Raftery knew that Davis was also

suspected of having committed a murder in Westmoreland County,

Virginia, Raftery had already contacted Officer Bill England of

the Westmoreland County Sheriff's Department to notify England

of Davis' arrest.   Officer England, who had been attempting to

locate Davis for "six" months, traveled immediately to

Baltimore.   He arrived at Baltimore police headquarters

approximately three and one-half hours after Detective Raftery

had ended his interview with Davis.

                               - 2 -
     When Officer England arrived, Davis was still in the

interrogation room.    Detective Raftery told Officer England that

Davis had asserted his right to counsel concerning the Maryland

offense.    Officer England then entered the interrogation room

with Davis.    England introduced himself to Davis and advised

Davis of the pending Virginia charges.    England told Davis that

a co-suspect in the Virginia murder, Dion Carter, had made

statements implicating Davis as the actual perpetrator of the

murder.    Specifically, England told Davis that Carter said it

was Davis' idea to kill the victim, after having robbed him and

taken his wallet, and that Davis then took the victim "out to

the tree line or wood line and shot him." 2    England also told

Davis that Carter "was willing to give [police] the shotgun and

the wallet and that for further consideration he was willing to

testify against [Davis]."

     Davis had remained silent until Officer England told him

the statements allegedly made by Carter.      At that point, Davis

"put his hands on his face and he literally put his face into

his lap and he came back up and he started to tear up and he

said, I cannot believe [Carter] said that about me.     That is not

what happened.    But I will tell you what happened."   Officer

England then told Davis that he "had to get some stuff" but

"would be back in a little bit."

     2
         Officer England had not actually received this information
                               - 3 -
     After speaking with "two assistant state attorneys from the

City of Baltimore" and the Commonwealth's Attorney for

Westmoreland County about "what [he] should do," Officer England

returned to the interrogation room to interview Davis.   England

asked Davis if he was still willing to cooperate, and Davis said

"Yes."   Officer England then advised Davis of his Miranda rights

and had Davis execute a written waiver.   At that time, Davis

gave the statement suppressed by the trial court.

     Prior to his trial in circuit court on the Virginia murder

charge, Davis raised a motion to suppress the statement he gave

to Officer England.   Davis contended the statement was elicited

in violation of the "5th and 14th Amendments to the U.S.

Constitutions [sic], comparable provisions of the Virginia

Constitution, and the case of Edwards v. Arizona, 451 U.S. 477

(1981), and its progeny."

     During the hearing on the motion, Officer England testified

that he was an experienced police officer, that he had twenty

years of experience in conducting criminal investigations, and

that he had interviewed "numerous" criminal suspects.    He

acknowledged that, based upon his prior training and experience,

he was aware that "telling a suspect that a co-defendant or a

co-suspect has flipped on him or implicated him" is an

"effective technique" for encouraging a suspect to cooperate


from Carter, but had learned it from Carter's aunt.
                              - 4 -
with authorities and provide a statement.   Indeed, he agreed

that the use of this particular technique was "reasonably likely

to elicit a response" from a suspect.   However, Officer England

testified that when he talked to Davis about the charges he "was

not in that frame of mind," but was merely "blow[ing] off some

steam" in relief that Davis had finally been apprehended.   He

stated that he was "caught" "off guard" when Davis responded to

his comments.

     Davis also testified during the suppression hearing.      He

testified that he told Officer Raftery he did not want to see

the Virginia officers.   He stated that when Officer England

entered the interview room, he told England he did not want to

speak to him and that he had requested a lawyer.   Davis claimed

England, nevertheless, continued talking to him, telling him

that he was in "trouble," and mentioning the death penalty "a

few" times.    Davis further testified that he finally decided to

talk to Officer England because he was "scared," "tired," and

"worn down."

     At the close of the evidence, Davis argued his statement

should be suppressed because Officer England had violated the

rule set forth in Edwards.    He contended Officer England knew he

had invoked his right to counsel, that he had not initiated the

discussion with England, and that England's discussion with him

was the functional equivalent of an interrogation.

                               - 5 -
     In response, the Commonwealth argued that Davis had not

asserted his right to counsel for the Virginia offense, but only

for the Maryland offense.   The Commonwealth further argued that,

after a break in the discussion (the 30-45 minutes during which

Officer England left the interrogation room), Davis initiated

the discussion about the Virginia charges, thereby knowingly and

intelligently waiving his right to counsel.   Thus, the

Commonwealth contended there was no violation of Davis' Miranda

rights.

     The trial court granted Davis' motion to suppress, finding:

          the defendant was arrested in Maryland on
          December 1st, 2000. He was advised by
          Detective Raftery of his Miranda rights and
          the defendant orally invoked his right to
          counsel. The defendant was told that the
          Virginia authorities were coming but there
          never was a request by the defendant to see
          or speak to the Virginia authorities.

          When the Virginia authorities arrived in
          Maryland they were told that the defendant,
          after having been advised of his Miranda
          rights, had invoked his right to counsel.
          From the time of the defendant's arrest
          until [Officer England] spoke to him, the
          defendant was continuously in custody and no
          attorney was ever present during the events
          in question. The issue in this motion
          raises the question about a Fifth Amendment
          right to counsel and not a Sixth Amendment
          right to counsel.

          In Edwards [v.] Arizona, 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
                              - 6 -
          of the questioning.

           *      *      *        *     *     *      *

          An exception to the Edwards rule is where
          the defendant initiates a conversation with
          the authorities. The evidence before the
          Court shows that . . . defendant neither
          asked or sought in any way to speak with the
          Virginia authorities. If the Court accepts
          [Officer England's] testimony that he had no
          expectation or desire to interrogate the
          defendant but just wanted to see the person
          that he had been pursuing for six months,
          the Court must still examine whether
          [Officer England's] actions in telling the
          defendant what his co-defendant Carter had
          said was a functional equivalent of
          interrogation.

           *      *      *        *     *     *      *

          In this case, [Officer England] testified
          that he had been trained in interrogation
          techniques and that one of the ways to
          usually obtain a response is to tell his
          suspect that his co-defendant has made a
          statement casting the blame on the suspect.
          [Officer England] testified that he in fact
          told the defendant that his co-defendant,
          who is Dion Clark [sic], had given a
          statement inculpating the defendant. The
          Court finds that [Officer] England's actions
          were the functional equivalent to
          interrogation and, consequently, was an
          interrogation initiated by the authorities
          and not by the defendant.


                                  II.

     On appeal, the Commonwealth contends only that the trial

court erred in finding Officer England's conduct was the

functional equivalent of interrogation and that Davis' statement



                                - 7 -
was, therefore, obtained in violation of his Miranda rights.       We

disagree.

     The Commonwealth has the burden to show that the trial

court's decision was erroneous upon an appeal from an order

granting a defendant's motion to suppress.     See Stanley v.

Commonwealth, 16 Va. App. 873, 874, 433 S.E.2d 512, 513 (1993).

We review the trial court's findings of historical fact only for

"clear error," but we review de novo the trial court's

application of defined legal standards to the particular facts

of a case.     See Ornelas v. United States, 517 U.S. 690, 699

(1996).   "Whether a defendant 'invoked' his Miranda right to

counsel during custodial interrogation and whether he 'waived'

this right, are determined by applying judicially declared

standards."     Quinn v. Commonwealth, 25 Va. App. 702, 713, 492

S.E.2d 470, 474-75 (1997) (citing Davis v. United States, 512

U.S. 452, 457 (1994) (noting the standard for invocation); Moran

v. Burbine, 475 U.S. 412, 421 (1986) (noting the standard for

waiver)).

             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. See
             Edwards v. Arizona, [451 U.S. at 485-86];
             Miranda, [384 U.S. at 469, 475]; see also
             Correll v. Commonwealth, 232 Va. 454, 462,
             352 S.E.2d 352, 356 (1987); Foster v.
             Commonwealth, 8 Va. App. 167, 173, 380
             S.E.2d 12, 15 (1989). . . . If [an]

                                - 8 -
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. See Edwards, [451
U.S. at 482]; Miranda, [384 U.S. at 475].
See also Colorado v. Connelly, [479 U.S.
157, 168] (1986); Mills v. Commonwealth, 14
Va. App. 459, 468, 418 S.E.2d 718, 722-23
(1992).

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]; McNeil v. Wisconsin, [501 U.S.
171, 176, 178] (1991); Michigan v. Harvey,
[494 U.S. 344, 350] (1990). 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. See Minnick v. Mississippi,
[498 U.S. 146, 153] (1990); Arizona v.
Roberson, [486 U.S. 675, 683] (1988);
Edwards, [451 U.S. at 484-85]; see also
Jackson v. Commonwealth, 14 Va. App. 414,
416, 417 S.E.2d 5, 6-7 (1992). 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." Edwards, [451 U.S.
at 484]; see 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). However, the
Edwards rule only applies to periods of
continuous custody, and, if the defendant is
released from custody following the
                   - 9 -
          invocation of his Miranda right to counsel,
          the Edwards rule does not bar subsequent
          police-initiated interrogation. See Tipton
          v. Commonwealth, 18 Va. App. 832, 834, 447
          S.E.2d 539, 540 (1994).

          Whether the Edwards rule renders a statement
          inadmissible is determined by a three-part
          inquiry. Cf. Smith v. Illinois, [469 U.S.
          91, 95] (1984). 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. Id.; see
          Tipton, 18 Va. App. at 834, 447 S.E.2d at
          540. 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. See
          Smith, [469 U.S. at 96] (stating that
          statement is admissible if made at a
          defendant-initiated meeting); Minnick, [498
          U.S. at 153] (stating that police "may not
          reinitiate interrogation without counsel
          present"). 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." Smith, [469 U.S. at 96].

Quinn, 25 Va. App. at 710-12, 492 S.E.2d at 474-75.

     Thus, these "'safeguards come into play whenever a person in

custody is subjected'" to an interrogation.   Jenkins v.

Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 365 (1992)

(quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

"The term 'interrogation' means either express questioning or its

functional equivalent."   Watts v. Commonwealth, 38 Va. App. 206,


                              - 10 -
214, 562 S.E.2d 699, 703 (2002).     "The 'functional equivalent' of

an interrogation is 'any words or actions on the part of the

police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.'"     Id.

(quoting Innis, 446 U.S. at 301).     However, "[i]f a suspect's

statement was not foreseeable, then it is volunteered," and such

"'[v]olunteered statements . . . are not barred by the Fifth

Amendment and their admissibility is not affected by [Miranda].'"
Blain v. Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841

(1988) (quoting Miranda, 384 U.S. at 478) (alteration in

original).   Accordingly, we have interpreted the Innis standard

"as requiring a determination whether an objective observer would

view an officer's words or actions as designed to elicit an

incriminating response."   Id.

     Here, there is no dispute that Officer England did not

engage in any express questioning of Davis.    Rather, the issue is

whether his discussion with Davis, concerning the statements

allegedly made by Carter, amounted to a "functional equivalent"

of an interrogation, or whether Davis' statement was

"volunteered" and reflected his "knowing and intelligent" waiver

of his right to counsel.   We find that the trial court properly

determined that Officer England's conduct was the functional

equivalent of an interrogation and that, therefore, Davis'

statement was not "volunteered."

     Officer England acknowledged that he knew telling a suspect

that someone, generally a co-suspect or codefendant, has

                                 - 11 -
implicated him or her as the perpetrator of the crime is an

"effective technique" "reasonably likely to elicit a response"

from the suspect.   Thus, as an experienced police officer, there

can be no question that Officer England "should" have known that

his actions were reasonably likely to elicit an incriminating

response from Davis.   Nor can there be any question that an

objective observer would have viewed his conduct as "likely to

elicit an incriminating response."     Id. at 16, 371 S.E.2d at 841.

Indeed, England's statements to Davis could hardly be equated to

those made by police in the cases relied upon by the

Commonwealth.   See Innis, 446 U.S. at 303 (holding that a brief

conversation between police officers which amounted to "no more

than a few offhand remarks" about the missing weapon was not the

functional equivalent of interrogation); Gates v. Commonwealth,

30 Va. App. 352, 356, 516 S.E.2d 731, 732 (1999) (holding that

reading a warrant to a suspect in an interrogation room was not

the functional equivalent of interrogation as the conduct

amounted merely to "'words or actions by the police which are

normally attendant to arrest and custody'" (quoting Wright v.
Commonwealth, 2 Va. App. 743, 746, 348 S.E.2d 9, 12 (1986))); and

Blain, 7 Va. App. at 16, 371 S.E.2d at 841-42 (holding that a

conversation between police and the suspect was calculated

specifically to produce physical evidence of the crime and was,

therefore, not the functional equivalent of interrogation).

     Moreover, the fact that England claimed he did not intend to

elicit such a response is of no consequence.    Neither the Innis

standard, nor our interpretation of the standard as set forth in

                              - 12 -
Blain, requires a showing of subjective intent on the part of the

officer.   Indeed, the United States Supreme Court in Innis

specifically fashioned the standard "upon the perceptions of the

suspect, rather than the intent of the police," in order to

reflect the notion that "Miranda safeguards were designed to vest

a suspect in custody with an added measure of protection against

coercive police tactics, without regard to objective proof of the

underlying intent of police."     Innis, 446 U.S. at 302.

     Accordingly, we find no error in the trial court's

determination that Officer England's conduct amounted to the

functional equivalent of an interrogation and that, therefore,

Davis' statement was not volunteered.    As the trial court made an

express factual determination, not disputed on appeal, that Davis

remained in custody at all times relevant, that he properly

invoked his right to counsel, and that no counsel was present

during the conversation at issue, we further find no error on the

part of the trial court in granting Davis' motion to suppress his

statement.   Thus, we affirm the trial court's ruling.
                                                            Affirmed.




                                - 13 -
