COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judge Humphreys, Senior Judges Hodges and Overton

Argued at Chesapeake, Virginia

MICHAEL DEFRANCISCO

MEMORANDUM OPINION* BY

v. Record No. 1427-99-1 JUDGE NELSON T. OVERTON

MAY 23, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

William C. Andrews, III, Judge

Fred C. Hardwick, II (Eusner & Hardwick,

P.C., on brief), for appellant.

Thomas M. McKenna, Assistant Attorney General

(Mark L. Earley, Attorney General, on brief),

for appellee.

On appeal from his convictions of robbery, in violation of

Code 18.2-58, and possession of cocaine, in violation of Code

18.2-250, Michael Defrancisco contends that the trial court

erred in denying his motion to suppress statements made in

violation of his right to counsel. Finding that Defrancisco did

invoke his right to counsel, we reverse the judgment of the

trial court.

The facts are not in dispute.

On July 10, 1998, Defrancisco was arrested and brought to

the Hampton police station for questioning involving the rape

and robbery of Shirley Saunders, as well as the cocaine found in

a search of Defrancisco's residence. At the station, Detective

Jimmy Forbes advised Defrancisco of his rights pursuant to

Miranda, which Defrancisco acknowledged he understood.

Defrancisco then asked Detective Forbes to call his parents,

which Detective Forbes did, leaving Defrancisco to be questioned

by Sergeant Payne. Defrancisco asked Sergeant Payne if he could

call a lawyer before answering any questions, to which Sergeant

Payne responded, "Sure, that's your right. You can do whatever

you want to do." Defrancisco then stated, "Well, I think I'd

like to call a lawyer if I could."

Sergeant Payne left the interrogation room and informed

Detective Forbes of Defrancisco's statements. Detective Forbes

re-entered the room and commented to Defrancisco that, "Hey, I

understand from [Sergeant] Payne that you want an attorney,

okay." Defrancisco replied, "No. I said if you can get one, I

would like him." Detective Forbes then told Defrancisco that he

could call an attorney from the magistrate's office, located

across the street. Detective Forbes warned that, "once you're

over there, it's hard for me to talk with you, but we will do

whatever you want to do. I would like to talk now."

Defrancisco then replied, "Okay, sit down, let's talk."

Defrancisco contends that the trial court erred in denying

his motion to suppress statements made to the detectives. He

argues the statements were elicited after he had invoked his

right to counsel, in violation of his Sixth Amendment rights.

We agree.

"[An accused] subject to custodial interrogation has the

right to consult with an attorney and to have counsel present

during questioning, and . . . the police must explain this right

[to the accused] . . . before questioning begins." Davis v.

United States, 512 U.S. 452, 457 (1994) (citing Miranda v.

Arizona, 384 U.S. 436, 469-73 (1966)). Defrancisco does not

dispute that his rights were explained to him fully and timely.

Once Defrancisco requested a lawyer, however, the

detectives were bound to respect the invocation of his rights

under Miranda. "If [the accused] requests counsel, 'the

interrogation must cease until an attorney is present.'"

Edwards v. Arizona, 451 U.S. 477, 482 (1981) (citation omitted).

Defrancisco indicated to Sergeant Payne that he wanted a lawyer.

His statement, "I think I would like to have a lawyer, if I

could," was sufficiently clear "that a reasonable police officer

in the circumstances would understand the statement to be a

request for an attorney." Davis, 512 U.S. at 459. See McDaniel

v. Commonwealth, 30 Va. App. 602, 606, 518 S.E.2d 851, 853

(1999) (en banc) (the statement "I think I would rather have an

attorney here to speak for me" was found to be an invocation of

McDaniel's right to counsel). Furthermore, Sergeant Payne

testified that, after Defrancisco made the statement, he exited

the room and "there was discussions [sic] about making

arrangements for him to call a lawyer." It is clear from the

record that the detectives did, in fact, understand that

Defrancisco was requesting an attorney.

The Commonwealth argues that the subsequent statement made

by Defrancisco, "No, I said if you can get one, I would like

him," was not an unambiguous invocation of rights, but rather a

conditional request. At the point at which this subsequent

statement was made, however, Defrancisco had already invoked his

right to counsel. "Once an accused invokes his right to 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.'"

Giles v. Commonwealth, 28 Va. App. 527, 531-32, 507 S.E.2d 102,

105 (1998) (citation omitted).

The Commonwealth never demonstrated at the motion hearing

that any waiver by Defrancisco was purely voluntary. Contact

between the officers and Defrancisco was resumed by the

officers, not the accused. Indeed, the officers pressured

Defrancisco by intimating that calling a lawyer would make the

process more difficult. The Commonwealth's assertion that the

officers did not engage in "heavy-handed police tactics" may

well be true, but the Commonwealth did not meet its burden of

showing that the subsequent waiver of rights was purely

voluntary.

Accordingly, the judgment of the trial court is reversed.

The case is remanded for further proceedings, if the

Commonwealth be so advised.

Reversed and remanded.

* Pursuant to Code 17.1-413, recodifying Code

17-116.010, this opinion is not designated for publication.

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