ORDER of the Appellate Court

Okay, I admit it, my precognitive abilities are terrible. I finally got the Order the Virginia Court of Appeals entered into my Client's record in which the appeal was "granted in part and denied in part." The part granted? The Batson question: did the trial lawyer establish a prima facie case that there was an impermissible use of race in jury selection?

The question denied was the Miranda question. Miranda, for those of you who have never, ever seen a US TV police drama, is the requirement that Constitutional rights be announced to a suspect whom the police are not allowing to leave before the police question him. Basically, the police must say this:

1. You have the right to remain silent and refuse to answer questions.
2. Anything you do say may be used against you in a court of law.
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
5. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney.
6. Do you understand these rights as I've explained them to you?

Obviously, merely reading these rights to someone is a useless exercise unless the police also acquiesce when the suspect invokes his rights. In theory, police will stop questioning when rights are invoked. In reality this is gamed shamelessly. Police will pretend not to understand clear invocations of constitutional rights and courts will pretend that a reasonable police officer could have misunderstood such invocations. The claim in my client's case is that the defendant did invoke his rights but the police ignored him and continued the questioning for two hours until Client made some incriminating statements. The Court of Appeals denies this, per curiam¹, using this reasoning²:

I. Appellant contends the trial court erred in admitting his confession after telling police, "I ain't got nothing to say", because he unequivocally invoked his right to silence.

On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

So viewed, the evidence proved the following. Appellant was arrested and brought to Pitcairn Police Department, where he was read Miranda warnings and then interrogated. About thirty-seven minutes into the interrogation, appellant told detectives, "I ain't got nothing to say." He later added, "Ain't got nothing I can say." At another point, he says, "Take me to a magistrate." The officers told appellant, "You don't have to say a word, but if you don't say anything nobody knows your side of the story." Two hours into the interrogation, appellant made incriminating statements.

When a suspect voluntarily makes a knowing and intelligent waiver of his constitutional rights, that waiver remains valid through subsequent interviews until the suspect manifests a desire to revoke it. Shell v. Commonwealth, 11 Va. App. 247, 255, 397 S.E.2d 673, 677 (1990). Following such a waiver, it is lawful for police officers to continue to question the suspect until he clearly and unambiguously manifests his desire to invoke his right to remain silent or his right to counsel. See Midkiff v. Commonwealth, 250 Va. 262, 266-68, 462 S.E.2d 112, 115-16 (1995). The issue whether a defendant invoked the right to silence during a custodial interrogation is a mixed question of law and fact reviewed de novo on appeal. Commonwealth v. Redmond, 264 Va. 321, 326-27, 568 S.E.2d 695, 697 (2002).

Detective Jones testified he believed appellant meant he would not answer the particular question that Detective Smith had asked. Appellant admitted he had been arrested previously, and had been advised of his Miranda rights. He also admitted he knew he could invoke his right to silence. The trial court had sufficient basis to conclude that appellant had not unequivocally invoked his right to silence, and thus did not err in admitting the confession.

There is an oft quoted, but seldom applied, statement from Davis v. United States, 512 U.S. 452, 458-59 (1994), which explains that in order to invoke his constitutional rights a suspect need not "speak with the discrimination of an Oxford don." In my petition for appeal I argued this:

In order to determine whether or not the officers could have mistaken Mr. Greene's invocation of his right against self incrimination as preserved under the 5th and 14th Amendments and Miranda it is instructive to look at the statement: I ain't got nothing to say. While not perfect English an examination of the words used leaves little doubt as to their meaning.

I - The one who is speaking or writing - used as a nominative pronoun of the first person singular by one speaking or writing to refer to himself as the doer of the action.

ain't - (substandard word) have not

got - to come into or be in possession of - used in the past participle with the auxiliary have for emphasis

nothing - not any thing

to say - (infinitive form) to express in words

Webster’ Third New International Dictionary, RR Donnelly & Sons (1971).

While the grammar is poor it is clear that the words used have no applicable secondary meaning. Mr. Greene is clearly telling the detectives that he is not going to speak. The facts that he makes a further statement about his inability to say anything, that he wants to be taken from the interrogation to the magistrate, that he remains silent for long periods of time on the tape, and the fact the detectives are commenting on his decision to remain silent are all things which strongly bolster the conclusion that he asserted his right to remain silent. Mr. Greene's strongest assertion of his right to remain silent is clearly the first and that statement alone is enough that an objective analysis can but find that the continued interrogation violated Miranda. Beyond that, the totality of the circumstances, including the admission by Detective Smith that the interrogation would only end with a confession or assertion of the right to an attorney, can lead to no other conclusion than the fact that Miranda was violated.

Hmmm . . . Now I've got to figure out how exactly I'm supposed to appeal half a denial of petition. Should prove interesting.



¹ I'm not sure exactly when, but a while back the Court of Appeals started issuing all of these opinions "per curiam." Previously the opinions were issued under the name of a particular judge. I'm not sure why the change was made.

² Names and locales have been changed. I'm sure that if someone out there was ambitious enough to go and look at the public files (this was not sealed) you could probably figure out who my client is but you're at least going to have to go look.