Virginia Legal Trends and More: Counsel Request for ‘Some’ Questions Unclear

Counsel Request for ‘Some’ Questions Unclear

By Deborah Elkins
Published: June 30, 2011

Tags: Criminal, Judge William G. Petty, Virginia Court of Appeals

A defendant who wants to pick and choose certain questions to answer with a lawyer present must make it clear to a reasonable officer which questions he’ll answer and which he’ll defer; here, a drug suspect did not clearly invoke his right to counsel and the Court of Appeals upholds admission of defendant’s statement that the cocaine was his, not his girlfriend’s.

Because defendant did not make it objectively clear what questions the detective could not ask, we agree with the commonwealth that his reference to counsel was an ambiguous or equivocal request, and the trial court appropriately denied his motion. We hold that when a suspect makes a statement during a custodial interrogation that requests the presence of counsel before answering some questions, while also indicating a willingness to answer other questions without the presence of counsel, the statement must make it clear to a reasonable police officer what questions the suspect is unwilling to answer for the statement to effectively invoke the suspect’s Miranda-Edwards right to counsel. If the suspect fails to do this, the police may continue questioning him and his subsequent statements remain admissible.

A reference to counsel does not always warrant suppression of subsequent statements made by a suspect in response to police questioning. First, a suspect may request the presence of counsel during custodial interrogation on a limited basis that still permits some police questioning. Second, a request for counsel must be unambiguous and unequivocal. Not all statements mentioning a lawyer are an effective request for the presence of counsel.

A suspect’s qualified invocation will not render later incriminating statements inadmissible if a reasonable police officer would believe only that the qualifications might place certain questions outside the boundaries of the interrogation while counsel is not present. Here, defendant told the detective only that there were “certain questions” he would not answer without a lawyer present. He never explained what those certain questions were.

We affirm denial of the motion to suppress.

Defendant also challenges the sufficiency of the evidence to establish his intent to distribute the cocaine in his possession. He argues the commonwealth failed to prove that all of the solid, homogenous substance in his possession was cocaine, and that by failing to test all of the substance, the commonwealth did not prove that all 12.1 grams of the substance was actually cocaine.

When a portion of an unknown substance is tested and confirmed to be an illegal drug, it is not unreasonable for the fact finder to infer that the entire amount is the same illegal drug if the totality of the circumstances supports that inference. Here, the fact finder was entitled to find the substance in defendant’s possession was cocaine and he possessed a significant amount of it. The commonwealth proved a portion of the substance seized from the bedroom was cocaine, and the fact finder was free to make the reasonable inference that the remaining untested portion of that solid, homogeneous substance was also cocaine. When we further consider defendant’s possession of a digital scale, baggies, the “owe sheet” that matched names to amounts of money, and the detective’s testimony that defendant’s possession of the cocaine was inconsistent with personal use, we conclude the evidence was sufficient to prove possession with intent to distribute.
Affirmed.

Burrell v. Commonwealth (Petty) No. 0488-10-1, June 28, 2011; Hampton Cir.Ct. (Lerner) Ben Pavek, PD, for appellant; Susan M. Harris, AAG, for appellee. VLW 011-7-216, 13 pp.