Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 010636 

JASON WAYNE GREGORY 

OPINION BY JUSTICE DONALD W. LEMONS 

 January 11, 2002 

JASON WAYNE GREGORY 

v. Record No. 011028 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Jason Wayne Gregory (“Gregory”) was tried separately for 

two sets of unrelated offenses. One trial involved charges of 

capital murder, robbery, and two counts of use of a firearm in 

the commission of a felony (the “murder offenses”). The 

remaining trial involved charges of statutory burglary, grand 

larceny, and vandalism (the “burglary offenses”). In these 

appeals, we consider whether the Court of Appeals erred in 

holding that Gregory did not knowingly, intelligently, and 

voluntarily waive his right to speedy trial on the burglary 

offenses. We further consider whether the Court of Appeals 

erred in holding that the rule of Edwards v. Arizona, 451 U.S. 

477 (1981), did not prohibit police-initiated questioning of 

Gregory on January 16, 1998, when there had been a break in 
custody between successive interrogations concerning the 

murder offenses. 

I. Facts and Procedural History 

a. Investigation 

 On December 31, 1997, police found the dead body of James 

Michael Lambrecht (“Lambrecht”) in the backseat of a blue Ford 

Escort. Lambrecht had two gunshot wounds to the head. 

Lambrecht’s wife told the investigating officers that 

Lambrecht sold marijuana, and she provided the officers with 

his address book that contained a list of his customers. The 

list included the name “Jason,” whom the police later 

determined was Gregory. 

 At some time prior to January 4, 1998, Detective 

Elizabeth R. Baker (“Detective Baker”) left a message at 

Gregory’s home requesting that he contact her. Gregory 

responded on January 4, 1998. Detective Baker and Detective 

Steve Smith (“Detective Smith”) went to Gregory’s home. Upon 

request by the detectives, Gregory voluntarily accompanied 

them to the police station. Gregory was transported in a 

marked police car. He was not placed under formal arrest or 

handcuffed, and he rode to the police station in the front 

seat of the car. At that time, both detectives and Gregory 

knew that there was an outstanding capias for Gregory’s arrest 

on unrelated charges. 

2
At the police station, without advising Gregory of his 

Miranda rights, Detectives Baker and Smith questioned Gregory 

about Lambrecht’s murder. Detective Smith told Gregory that 

he had interviewed one of Gregory’s co-workers who saw 

Lambrecht the night before he was killed. The co-worker 

described a person he saw seated in the back seat of 

Lambrecht’s car. Detective Smith told Gregory that he matched 

the description of that person, which included a sweatshirt 

matching the one Gregory was wearing during the interview. 

Gregory then stated, “I think I should talk to my lawyer.” 

Detective Smith asked, “Why? Have you done something wrong?” 

The detectives continued their questioning of Gregory and did 

not advise him of his Miranda rights at any time on that 

occasion. During the remainder of the interview, Gregory did 

not mention an attorney again, nor did he admit to murdering 

Lambrecht. 

After the interrogation, Gregory was not released. 

Rather, he was brought before a magistrate who served him with 

the outstanding capias. Gregory was released on bond the 

following day. The police had no further contact with Gregory 

until January 16, 1998. 

On January 15, 1998, the Redeemer Lutheran Church in 

Chesterfield County was burglarized and $60,000 worth of 

church property was stolen or vandalized. During the 

3
investigation, the police interviewed an employee of a 

convenience store near the church who informed them that on 

the evening of the burglary, a man had tried to buy batteries 

for a radio that matched the description of a radio stolen 

from the church. The police viewed the store’s security 

camera videotape and identified Gregory as the man who had 

attempted to buy the batteries. 

On January 16, 1998, Jeff Able (“Able”) told Detective 

Baker that on the day before Gregory had informed Able that he 

had burglarized the church. Additionally, Able told Detective 

Baker that Gregory admitted that he and Michael Sammons 

(“Sammons”) had killed Lambrecht. The police then arrested 

Sammons, who quickly implicated both himself and Gregory in 

the murder. 

On January 16, 1998, Gregory was arrested for the 

burglary of the church and taken to police headquarters. He 

was advised of his Miranda rights, both orally and in writing, 

and signed a waiver form before questioning began. During 

this interrogation, Gregory confessed to shooting Lambrecht. 

After the confession, he was arrested and charged with the 

murder offenses. 

b. Pretrial and Trial Proceedings 

Gregory was represented by three attorneys at various 

times during trial and related proceedings for the two sets of 

4
offenses. On July 20, 1998, the Grand Jury of the Circuit 

Court of Chesterfield County indicted Gregory on seven 

charges: 

Murder offenses 

1. (CR98F01085-01) Capital Murder of James 

Lambrecht 

2. (CR98F01085-02) Use of a Firearm in the 

commission of murder of James Lambrecht 

3. (CR98F01085-03) Robbery of James Lambrecht 

4. (CR98F01085-04) Use of a Firearm in the 

commission of robbery of James Lambrecht 

Burglary offenses 

5. (CR98F01086-01) Breaking and Entering 

Redeemer Lutheran Church 

6. (CR98F01086-02) Grand Larceny of property 

of Redeemer Lutheran Church 

7. (CR98F01086-03) Destruction of Property of 

Redeemer Lutheran Church (Vandalism) 

By order dated June 18, 1998, Wayne Morgan (“Morgan”) was 

appointed by the circuit court to represent Gregory on six of 

the seven charges.1 By order dated July 24, 1998, Morgan was 

appointed to represent Gregory on the seventh charge as well. 

By order dated July 24, 1998, the circuit court appointed 

Theodore Tondrowski (“Tondrowski”) to represent Gregory as cocounsel on all seven charges. 

5
 At a hearing on January 26, 1999, the circuit court 

appointed Steven Benjamin (“Benjamin”) as “lead co-counsel” on 

the four murder offenses only.2 Following this hearing, on 

February 1, 1999, Tondrowski moved to withdraw as counsel for 

Gregory on the murder offenses only, but his motion was 

denied. 

A hearing on motions was held in the circuit court on 

October 19, 1998. The record reflects that all seven charges 

were before the trial court. The Commonwealth’s Attorney 

announced that “the main reason we were going to be here, was 

the motion – the defendant was going to waive his right to 

speedy trial. . . .” The trial court was occupied with the 

task of setting two trial dates: one for the burglary offenses 

and one for the murder offenses. The task was further 

complicated by the scheduling of trials of co-defendants. 

Gregory and Tondrowski were present at the hearing, but Morgan 

was not present. In response to the Commonwealth’s statement 

of the main purpose of the hearing, Tondrowski stated, “Judge, 

as I understand it, Mr. Morgan talked to Mr. Gregory last 

time, and I wasn’t there, but it’s my understanding from Mr. 

 1

 Morgan had been previously appointed to represent 

Gregory on these charges by the General District Court on June 

8, 1998. 

2

 The order reflecting the appointment was dated June 25, 

1999. 

6
Morgan that Mr. Gregory is prepared to waive the speedy trial 

rights.” 

The Commonwealth first moved to continue the trial on the 

burglary offenses from February 1 to February 5, 1999. When 

the trial court discussed this continuance to a particular 

date with counsel, the following exchange took place: 

Tondrowski: Judge, the only problem I have 

with that is I have not discussed this issue 

with Mr. Morgan, and Mr. Morgan represents 

[Gregory] on the B&E’s, and I do not. That’s 

the problem I have with it. 

The Court: All right. Well, we’re going to 

set it for February the 5th. That is the 

burglary case. 

Despite Tondrowski’s disclaimer of representation of Gregory 

on the burglary offenses, the various orders of appointment 

clearly establish that on October 19, 1998, both Tondrowski 

and Morgan represented Gregory on all seven charges before the 

trial court. 

The Commonwealth then moved to set the trial on the 

murder offenses for February 22, 1999. The trial court 

stated, “[a]ll right. Mr. Tondrowski, have you had the 

opportunity to consult with your client? I know you said Mr. 

Morgan had, but have you had the opportunity to consult with 

your client regarding waiver of speedy trial?” The record of 

the proceedings shows that Tondrowski requested permission to 

discuss the issue with Gregory and a conference between 

7
Tondrowski and Gregory took place. After the conference, 

Tondrowski replied to the trial court’s question by stating, 

“my client and Mr. Morgan . . . discussed it in great detail, 

and my client is prepared to go forward with the waiver.” 

The trial court then engaged in the following exchange 

with Gregory and counsel: 

THE COURT: Is, Mr. Gregory, what your 

lawyer says correct? 

DEFENDANT GREGORY: Yes, sir. 

THE COURT: You wish to waive your 

right to speedy trial? 

DEFENDANT GREGORY: Yes, sir. 

THE COURT: And you’ve had extensive 

discussions with Mr. Morgan reference that 

waiver? 

DEFENDANT GREGORY: I would not say 

extensive. 

THE COURT: Well, have you had enough 

discussion that you are satisfied that 

that is what is in your best interest? 

DEFENDANT GREGORY: He told me that that’s 

what was in my best interest, if that’s 

what you’re asking. 

THE COURT: And do you concur with 

that? Do you have any reason not to concur 

with it? 

DEFENDANT GREGORY: No, sir. 

THE COURT: So you will waive your 

right to a speedy trial? 

DEFENDANT GREGORY: Yes, sir. 

8
THE COURT: And, Mr. Tondrowski, having 

discussed that with your client, you would 

concur in his waiver? 

MR. TONDROWSKI: I would concur, yes. 

THE COURT: All right. Then we’ll 

continue the case over to begin on Monday, 

February 22nd, at 9:00 a.m. 

On February 4, 1999, Gregory filed a motion to dismiss 

the burglary offenses claiming that his statutory right to a 

speedy trial pursuant to Code § 19.2-243 had been violated 

because he had been continuously incarcerated and more than 

five months had passed since the determination of probable 

cause in the General District Court on June 8, 1998. This 

motion was filed and argued by Benjamin who had never been 

appointed to represent Gregory on the burglary offenses. 

Gregory maintained that the October 19, 1998 hearing only 

addressed waiver of speedy trial rights with respect to the 

murder offenses and not the burglary offenses. Additionally, 

Gregory argued that, even if the record of the proceedings 

were interpreted to apply to both sets of offenses, the waiver 

of speedy trial rights with respect to the burglary offenses 

was ineffective because Morgan had not been present at the 

October 19, 1998 hearing. According to Gregory, Morgan’s 

absence violated his Sixth Amendment right to counsel; 

9
therefore, his waiver could not have been knowing, 

intelligent, and voluntary. 

At a hearing on the motion, Benjamin requested the 

Commonwealth to stipulate that Tondrowski “never represented 

Mr. Gregory on the burglary, grand larceny, and vandalism 

charges, and has never done anything – has never undertaken 

that representation.” The trial court asked the Commonwealth 

if the stipulation was accepted. The Commonwealth declined to 

accept the stipulation and stated, “Judge, I would rely on the 

Court orders and what the record would reflect.” Addressing 

Benjamin, the trial court stated, “[r]ely on what the records 

reflect, sir,” to which Benjamin responded, “[a]ll right, 

sir.” 

The Commonwealth’s response to the motion argued that 

Gregory clearly had talked to Morgan about speedy trial 

waiver, and that the trial court was correct “in considering 

Mr. Tondrowski to be representing [Gregory] on all charges” at 

the October 19, 1998 hearing. The trial court denied 

Gregory’s motion to dismiss the burglary offenses. 

Gregory was subsequently tried and convicted of burglary, 

vandalism, and grand larceny. At a separate trial, Gregory 

was tried and convicted of capital murder, robbery, and two 

counts of use of a firearm in the commission of a felony. 

c. Appellate Proceedings 

10
On appeal, in an unpublished opinion, the Court of 

Appeals reversed Gregory’s convictions on the burglary 

offenses and affirmed Gregory’s convictions on the murder 

offenses. With regard to the burglary offenses, the Court of 

Appeals held that Gregory was not tried within the time 

required by Code § 19.2-243 because more than five months had 

elapsed between the probable cause finding and the trial, and 

that Gregory had not waived his statutory speedy trial rights. 

The Court of Appeals held that the colloquy at the October 19, 

1998 hearing did not address the burglary offenses, and that 

Morgan’s absence from the hearing rendered ineffective any 

waiver that otherwise took place. Gregory v. Commonwealth, 

Record No. 1671-99-2, 2001 Va. App. LEXIS 125, at *13 (Mar. 

13, 2001). 

On appeal of the murder offenses to the Court of Appeals, 

Gregory argued that police violated his rights provided in 

Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v. 

Arizona, 451 U.S. 477 (1981), and that the trial court erred 

in failing to suppress evidence obtained from the 

interrogations on January 4 and January 16, 1998. The trial 

court had denied the motion to suppress. The trial court held 

that the interview on January 4, 1998 was non-custodial and 

that Gregory did not invoke his Fifth Amendment right to 

counsel during the interview; therefore, Miranda rights did 

11
not attach. Finding that Miranda warnings were given prior to 

the January 16, 1998 interview, the trial court held that 

Miranda rights were not violated, and because the prior 

interview was not custodial and there had been no prior 

invocation of the right to counsel, Edwards did not apply. 

While affirming the trial court’s denial of Gregory’s 

motion to suppress, the Court of Appeals did not decide 

whether the January 4, 1998 interview was custodial in nature, 

nor did it decide whether Gregory invoked his right to 

counsel. Rather, the Court of Appeals determined that any 

trial court error, if made, was harmless. The Court of 

Appeals also held that a break in Gregory’s custody between 

interviews made the requirements of Edwards inapplicable. 

Gregory, 2001 Va. App. LEXIS 125, at *21. 

 Gregory appealed the Court of Appeals’ affirmance of the 

convictions on the murder offenses. The Commonwealth appealed 

the Court of Appeals’ reversal of the burglary offenses. We 

awarded appeals to Gregory and the Commonwealth and we will 

affirm the murder convictions, but we will reverse the 

judgment of the Court of Appeals concerning the burglary 

convictions. 

II. Speedy Trial 

 Gregory argues that the trial court erred in denying his 

motion to dismiss his burglary, grand larceny, and vandalism 

12
charges because the Commonwealth failed to try him within five 

months of finding of probable cause in violation of Code 

§ 19.2-243. 

Code § 19.2-243 states, in part: 

Where a general district court has found 

that there is probable cause to believe that 

the accused has committed a felony, the 

accused, if he is held continuously in custody 

thereafter, shall be forever discharged from 

prosecution for such offense if no trial is 

commenced in the circuit court within five 

months from the date such probable cause was 

found by the district court; and if the accused 

is not held in custody but has been recognized 

for his appearance in the circuit court to 

answer for such offense, he shall be forever 

discharged from prosecution therefor if no 

trial is commenced in the circuit court within 

nine months from the date such probable cause 

was found. 

Code § 19.2-243(4), however, states that the provisions of the 

section do not apply if the failure to try the accused was 

caused: 

By continuance granted on the motion of the 

accused or his counsel, or by concurrence of 

the accused or his counsel in such a motion by 

the attorney for the Commonwealth, or by the 

failure of the accused or his counsel to make a 

timely objection to such a motion by the 

attorney for the Commonwealth, or by reason of 

his escaping from jail or failing to appear 

according to his recognizance. 

 The General District Court made its probable cause 

determination on June 8, 1998. Gregory argues that, absent 

agreement or waiver, the Commonwealth was required to try him 

13
on or before November 7, 1998 or his prosecution would be 

barred on the burglary offenses. Gregory maintains that there 

was no agreement to continue the case, nor was there an 

effective waiver of his speedy trial rights. The Commonwealth 

argues that a waiver contemplated by Code § 19.2-243(4) 

occurred at the hearing on October 19, 1998. We agree with 

the Commonwealth. 

 We recently restated that “[w]hen a defendant requests, 

agrees to, or acquiesces in an order that effectively 

continues a case, the five-month speedy trial period of Code 

§ 19.2-243 is tolled during the time reasonably specified by 

the court to carry out the terms of its order.” Heath v. 

Commonwealth, 261 Va. 389, 393, 541 S.E.2d 906, 908 (2001). 

Accordingly, because Gregory, with the benefit of advice of 

counsel, agreed to a continuance of the trial date or failed 

to object to the Commonwealth’s request for a continuance, the 

period of time involved does not count in the computation of 

time for compliance with the requirements of Code § 19.2-243. 

 On October 19, 1998, all seven charges against Gregory 

were before the court for motions. Gregory and Tondrowski 

were present; Morgan was not. According to the court orders 

in the record of this case, on that date, Gregory was 

represented on all seven charges by both Morgan and 

Tondrowski. 

14
 The main purpose of the hearing as announced by the 

Commonwealth’s Attorney was for Gregory to waive his rights to 

a speedy trial. Tondrowski’s response assured the trial court 

of his understanding that Morgan had conferred with Gregory on 

the subject of speedy trial waiver when he stated, “it’s my 

understanding from Mr. Morgan that Mr. Gregory is prepared to 

waive the speedy trial rights.” There was no distinction made 

between burglary offenses and murder offenses in this 

colloquy. 

 The trial court proceeded to set the trial dates for each 

set of offenses separately. Upon selection of February 5, 

1999, Tondrowski expressed concern, not about waiver of speedy 

trial rights, but about the availability of February 5, 1999 

on Morgan’s calendar. Such an understanding is consistent 

with the context of the exchange between Tondrowski and the 

trial court. Tondrowski had already communicated Morgan’s 

agreement concerning waiver of speedy trial rights. The only 

remaining issue for discussion was the particular date for 

trial. Understandably, Tondrowski was not aware of Morgan’s 

availability on February 5, 1999. The trial court set the 

date for the trial of the burglary offenses for February 5, 

1999 and then set the trial of the murder offenses for 

February 22, 1999. 

15
 After determining both trial dates, the trial court 

addressed the speedy trial issue again. This colloquy made no 

distinction between burglary offenses and murder offenses. 

Having previously established that Morgan had discussed speedy 

trial issues with Gregory, the trial court focused upon 

Tondrowski’s consultation with Gregory. 

 When asked if he had consulted with Gregory concerning 

“waiver of speedy trial,” Tondrowski requested permission to 

confer with Gregory. The transcription in the record recites, 

“Mr. Tondrowski confers off the record with Defendant 

Gregory.” When the hearing resumed, rather than directly 

answering the trial court’s question about his own 

consultation with Gregory, Tondrowski reconfirmed Morgan’s 

consultation with Gregory on the subject. Tondrowski again 

stated, “my client is prepared to go forward with the waiver.” 

 The trial court asked Gregory if what Tondrowski said was 

correct. Confirming that it was correct, Gregory was asked 

directly, “[y]ou wish to waive your right to speedy trial?” 

He responded, “[y]es, sir.” Once again the trial court turned 

to Tondrowski and asked, “[a]nd, Mr. Tondrowski, having 

discussed that with your client, you would concur in his 

waiver?” Tondrowski answered, “I would concur, yes.” 

 Despite his later disclaimer, Tondrowski was counsel of 

record for Gregory on all seven charges on October 19, 1998. 

16
More importantly, he acted as counsel to Gregory concerning 

speedy trial waiver during the hearing. The trial court order 

memorializing the rulings on October 19, 1998 specifically 

references all seven charges and with respect to all charges, 

expressly states: “The attorney for the defendant waived the 

right to a speedy trial.” 

 We review the same trial record of the hearing on October 

19, 1998 that was available to the Court of Appeals. Upon 

review of that record we hold that the Court of Appeals erred 

in determining that Gregory was not asked whether he wished to 

waive his speedy trial rights on the burglary offenses, and 

further erred in determining that Gregory was not represented 

by counsel on those charges. Because the period from October 

19, 1998 to February 1, 1999 does not count toward the fivemonth period prescribed by Code § 19.2-243, Gregory was tried 

in compliance with the speedy trial statute. 

III. Admissibility of January 16, 1998 Statements 

Gregory argues that he was subjected to a custodial 

interrogation on January 4, 1998. He maintains that during 

the interrogation he clearly and unequivocally invoked his 

right to counsel. According to Gregory, police officers did 

not honor his request and continued to question him. After a 

break in custody, police officers initiated a second 

interrogation of Gregory on January 16, 1998. Gregory argues 

17
that the trial court and the Court of Appeals erred in 

permitting the Commonwealth to introduce into evidence the 

statements he made on January 16, 1998, in violation of the 

rule established in Edwards. 

The Commonwealth maintains that Gregory was not in 

custody during the initial interrogation on January 4, 1998, 

and furthermore, that Gregory did not clearly and 

unequivocally invoke his right to counsel. Even if the 

January 4, 1998 interrogation was custodial and Gregory 

requested counsel, the Commonwealth argues that a break in 

custody renders the Edwards rule inapplicable to the January 

16, 1998 interrogation. 

Edwards “established a second layer of prophylaxis for 

the Miranda right to counsel. . . .” McNeil v. Wisconsin, 501 

U.S. 171, 176 (1991). The well-known rights provided by 

Miranda, 384 U.S. at 473-74, for a suspect in custody include: 

“If the individual indicates in any manner, at any time prior 

to or during questioning, that he wishes to remain silent, the 

interrogation must cease. . . . If the individual states that 

he wants an attorney, the interrogation must cease until an 

attorney is present.” Edwards extended these principles to 

subsequent interrogation, holding that, “. . . an accused, 

. . . , having expressed his desire to deal with the police 

only through counsel, is not subject to further interrogation 

18
by the authorities until counsel has been made available to 

him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police.” 

Edwards, 451 U.S. at 484-85. In Minnick v. Mississippi, 498 

U.S. 146, 153 (1990), the Court clarified Edwards to require 

that “when counsel is requested, interrogation must cease, and 

officials may not reinitiate interrogation without counsel 

present, whether or not the accused has consulted with his 

attorney.” Prior consultation with counsel is not a 

substitute for counsel’s presence during interrogation. Id.

 The underlying concern of Miranda, Edwards, and their 

progeny is the coercive atmosphere of custodial interrogation 

and the state of mind of the suspect. As the Court stated in 

Arizona v. Roberson, 486 U.S. 675, 681 (1988): 

Thus, the prophylactic protections that the 

Miranda warnings provide to counteract the 

“inherently compelling pressures” of custodial 

interrogation and to “permit a full opportunity 

to exercise the privilege against selfincrimination,” are implemented by the 

application of the Edwards corollary that if a 

suspect believes that he is not capable of 

undergoing such questioning without advice of 

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. 

[citation omitted]. 

19
The right involved is the Fifth Amendment right against selfincrimination rather than the Sixth Amendment right to 

counsel. The prophylaxis of Miranda and Edwards provides the 

right to have counsel present during interrogation as an 

additional safeguard in the exercise of the right against 

self-incrimination. In contrast to the Sixth Amendment right 

to counsel which is offense-specific, the Fifth Amendment 

right against self-incrimination is not offense-specific. 

Roberson, 486 U.S. at 685. The Miranda-Edwards line of cases 

“focuses on the state of mind of the suspect and not of the 

police,” and “there is no reason to assume that a suspect’s 

state of mind is in any way investigation-specific.” Id. at 

687, 684. 

 The Edwards rule does not apply unless the prior 

interrogation was custodial and during that custodial 

interrogation, the suspect clearly and unequivocally invoked 

his right to counsel. The Court of Appeals did not decide the 

question of custody and invocation of right to counsel. 

Rather, the Court of Appeals utilized a harmless error 

analysis suggesting that nothing inculpatory came from the 

January 4, 1998 interrogation. However, it is not the fruits 

of the investigation that are at issue; rather, it is the 

coercive atmosphere of the custodial interrogation itself. 

20
 We will assume without deciding that Gregory was in 

custody while being interrogated on January 4, 1998 and that 

he sufficiently invoked his right to counsel during that 

interview. On January 16, 1998, Gregory was arrested for the 

burglary offenses and was taken to the same interrogation room 

used on January 4, 1998. The interrogation was not initiated 

by Gregory. 

 The sole assignment of error concerning this matter is 

stated as follows: “The Court of Appeals erred in holding that 

the Edwards rule did not prohibit police-initiated 

interrogation on January 16, 1998.” Although the issue has 

never been presented to the United States Supreme Court, much 

has been made of dicta in Justice Scalia’s majority opinion in 

McNeil: 

If the police do subsequently initiate an 

encounter in the absence of counsel (assuming 

there has been no break in custody), the 

suspect’s statements are presumed involuntary 

and therefore inadmissible as substantive 

evidence at trial, even where the suspect 

executes a waiver and his statements would be 

considered voluntary under traditional 

standards. This is “designed to prevent police 

from badgering a defendant into waiving his 

previously asserted Miranda rights.” 

McNeil, 501 U.S. at 177 (citation omitted). Without some 

limitation upon the Edwards rule, such as consideration of a 

break in custody, its prohibition upon subsequent policeinitiated interrogation illogically extends into perpetuity. 

21
As Justice Scalia noted, “[t]he Edwards rule, moreover, is not

offense specific: Once a suspect invokes the Miranda right to 

counsel for interrogation regarding one offense, he may not be 

reapproached regarding any offense unless counsel is present.” 

McNeil, 501 U.S. at 177. This difficulty with the Edwards

analysis was previously the subject of Justice Scalia’s 

observations in Minnick, wherein he noted: 

In this case Minnick was reapproached by the 

police three days after he requested counsel, 

but the result would presumably be the same if 

it had been three months, or three years, or 

even three decades. This perpetual irrebuttable 

presumption will apply, I might add, not merely 

to interrogations involving the original crime, 

but to those involving other subjects as well. 

Minnick, 498 U.S. at 163 (J. Scalia, dissenting). 

 Although the concern of Miranda, Edwards, and their 

progeny is the coercive circumstances of custodial 

interrogation and the state of mind of the suspect, it makes 

little sense to establish once and forever such circumstances 

and state of mind without consideration of intervening factors 

in the application of the Edwards rule. Such an eminently 

reasonable interpretation was developed by the United States 

Court of Appeals for the Tenth Circuit in United States v. 

Bautista, 145 F.3d 1140, 1150 (10th Cir. 1998), wherein the 

court stated: 

Edwards is premised on the inherently coercive 

nature of custodial interrogation and is 

22
designed to prevent the authorities from 

badgering a suspect in custody after the 

suspect has invoked his Miranda right to have 

an attorney present during questioning. 

Therefore, . . . in order for Edwards to apply, 

the suspect must be in custody from the time he 

invokes his right to the time when the 

subsequent interrogation is initiated. If 

custody is broken, especially for a lengthy 

period of time, the inherently coercive nature 

of custody itself is diminished and there is 

little to no risk of badgering by the 

authorities. This is not to say that the 

police can circumvent Edwards by temporarily 

releasing a suspect for a short period of time 

and then reacquiring him. Whether a break in 

custody is sufficient to remove a suspect’s 

request for counsel from the ambit of Edwards

must be evaluated under the totality of the 

circumstances. 

 At the beginning of the subsequent interrogation on 

January 16, 1998, police gave Gregory Miranda warnings orally 

and in writing and he executed a “waiver form” indicating that 

he was aware of his right to counsel. There is no issue 

concerning voluntariness. Gregory voluntarily confessed to 

the murder offenses during the subsequent interrogation. 

Considering a six-day break in custody, the court in Bautista

held that the subsequent interrogation did not violate the 

rule in Edwards. Similarly, under the circumstances presented 

in this case, we hold that the twelve-day break in custody 

renders the rule in Edwards inapplicable to Gregory’s 

subsequent interrogation. The Court of Appeals, although on 

23
other grounds, did not err in affirming Gregory’s convictions 

on the murder offenses. 

IV. Conclusion 

 For the reasons stated, the judgment of the Court of 

Appeals concerning the burglary offenses will be reversed and 

vacated and the judgment of the trial court will be 

reinstated. The judgment of the Court of Appeals concerning 

the murder offenses will be affirmed. 

Record No. 010636 – Reversed and vacated. 

 Record No. 011028 – Affirmed. 

24