Tuesday 23rd 

 October, 2001. 

Kevin Michael Potts, Appellant, 

 against Record No. 2854-99-1 

 Circuit Court No. CR99-1700 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray, 

Annunziata, Bumgardner, Frank, Clements and Agee 

 

 Theresa B. Berry (Berry, Ermlich, 

Lomax & Bennett, on brief), for 

appellant. 

 H. Elizabeth Shaffer, Assistant 

Attorney General (Randolph A. Beales, 

Attorney General, on brief), for 

appellee. 

By opinion dated May 22, 2001, a divided panel of this 

Court affirmed the judgment of the trial court. See Potts v. 

Commonwealth, 35 Va. App. 485, 546 S.E.2d 229 (2001). We 

granted rehearing en banc and stayed the mandate of that 

decision. 

 Upon rehearing en banc, the stay of this Court's May 

22, 2001 mandate is lifted, and the judgment of the trial court 

is affirmed for the reasons set forth in the majority panel 

decision. 
Chief Judge Fitzpatrick, Judges Benton, Elder and 

Clements dissent for those reasons expressed in the dissenting 

opinion of the panel. See id. at 497-505, 546 S.E.2d at 235-39. 

It is ordered that the trial court allow counsel for 

the appellant an additional fee of $200 for services rendered 

the appellant on the rehearing portion of this appeal, in 

addition to counsel's costs and necessary direct out-of-pocket 

expenses. This amount shall be added to the costs due the 

Commonwealth in the May 22, 2001 mandate. 

This order shall be published and certified to the 

trial court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

- 2 -
 Tuesday 26th 

 June, 2001. 

Kevin Michael Potts, Appellant, 

 against Record No. 2854-99-1 

 Circuit Court No. CR99-1700 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

Bray, Annunziata, Bumgardner, Frank, Clements and Agee 

On June 5, 2001 came Kevin Michael Potts, the 

appellant, by court-appointed counsel, and filed a petition 

praying that the Court set aside the judgment rendered herein on 

May 22, 2001, and grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing 

en banc is granted, the mandate entered herein on May 22, 2001 

is stayed pending the decision of the Court en banc, and the 

appeal is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. The appellant shall attach as an addendum to the opening 

brief upon rehearing en banc a copy of the opinion previously 

rendered by the Court in this matter. It is further ordered that 

- 3 -
the appellant shall file with the clerk of this Court twelve 

additional copies of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

- 4 -
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

KEVIN MICHAEL POTTS 

 OPINION BY 

v. Record No. 2854-99-1 JUDGE G. STEVEN AGEE 

 MAY 22, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Theresa B. Berry (Berry, Ermlich, Lomax & 

Meixel, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On December 30, 1998, the appellant, Kevin Michael Potts 

(Potts), was arrested for the murder and conspiracy to commit the 

murder of Troy Lee Wilson. After indictment and prior to trial, a 

hearing was held July 23, 1999, upon Potts' motion to suppress his 

December 30 confession to Wilson's murder. The trial court overruled 

Potts' motion. On August 19, 1999, Potts entered a conditional 

guilty plea in the Circuit Court of the City of Virginia Beach to 

Wilson's murder, pursuant to a plea agreement reserving his right to 

challenge the admission of his confession into evidence pursuant to 

Code § 19.2-254 (the conspiracy charge being nolle prosequi). On 

this appeal, Potts argues the trial court erred in not suppressing 

- 5 -
his confession, claiming it was made involuntarily. We disagree and 

affirm the trial court's ruling and Potts' conviction. 

I. 

BACKGROUND 

 On the evening of December 9, 1998, Dawain Hopkins (Hopkins) 

found himself unable to pay a debt owed to his cocaine supplier, Troy 

Wilson (Wilson). To stall Wilson, Hopkins' friend, Kevin Potts, 

paged Wilson and requested $40 of cocaine. Wilson and Potts agreed 

to meet later that night at a secluded location. 

 At approximately 11:00 p.m., Potts arrived alone, planning to 

kill Wilson. Upon Wilson's arrival, Potts distracted Wilson, causing 

him to turn away from Potts. As Wilson turned, Potts stabbed him in 

the back of the head. Wilson cried out and slumped to the ground, 

the knife embedded in his skull. 

 Potts dragged the victim to nearby bushes, fled, but returned 

almost immediately to find Wilson still alive. Potts spent the next 

five minutes "having a conversation with [Wilson]," asking him such 

questions as, "What happened to you? There's a knife in your head." 

Afterwards, Potts took money and possessions belonging to Wilson and 

attempted to further conceal the body, but was unable to retrieve the 

knife embedded in Wilson's skull. 

 Potts returned the next day with a crowbar to recover the knife 

and the cocaine Wilson had intended to sell him. Potts told Hopkins 

what had happened, and the two returned to the crime scene. They dug 

 -6- 
a hole, buried the body and then threw the knife and some of Wilson's 

possessions into a nearby lake. 

 On December 30, 1998, Detective Christopher C. Molleen of the 

Virginia Beach Police Department learned that Potts was likely 

involved in Wilson's disappearance. Hopkins had implicated Potts in 

a statement made to another detective. That afternoon, Detective 

Molleen arrested Potts in front of his mother's home and took him to 

the police station. Upon arrival, Potts was placed in an interview 

room, his handcuffs were removed, he was allowed to use the restroom 

and offered something to drink. 

 Detective Molleen then entered the interview room, sat down, 

opened a notebook and advised Potts of his Miranda rights by reading 

from a printed card. The entire interview was recorded on videotape, 

which is part of the record. The detective then asked Potts if he 

understood his rights, and Potts said that he did. 

At the time of the interview, Detective Molleen knew Potts was 

seventeen years old and not attending school regularly. He also knew 

Potts had previously been arrested on several minor charges 

(destruction of property, petit larceny); however, Detective Molleen 

did not know whether those arrests involved police interrogation. 

Detective Molleen likely knew Potts' mother had made several demands 

to other police officers that her son not be questioned without the 

presence of an attorney. 

 -7- 
 Approximately a minute into the interview, Potts stated that he 

wanted to speak with an attorney. The following exchange and events 

are revealed on the videotape: 

DETECTIVE: I think some things kind of got out 

of hand a couple of weeks back, situation got out 

control, maybe Dawain was in a little bit of 

trouble with a particular person, maybe you tried 

to help him out, it got out of hand, maybe 

somebody got hurt as a result of it, does that 

sound kind of familiar? 

POTTS: I don't know. I want to talk to a 

lawyer. 

DETECTIVE: You want to talk to a lawyer. 

POTTS: And can I contact my mom? 

DETECTIVE: Nope. 

POTTS: She can't talk to me? 

DETECTIVE: Nope. 

POTTS: Nope? What's up with the lawyer, then? 

DETECTIVE: What's up with the lawyer? You'll 

get one when you get one. 

Detective Molleen, from the moment Potts stated he wanted to speak 

with a lawyer until this point in the exchange, sat straight up in 

his chair, turned his body and chair away from Potts toward the 

table, wrote Potts' statement in his notes, set his pen down and 

closed the notebook. Upon Potts' next question, the officer turned 

his head to face Potts, but his body and chair remained facing the 

table, with his writing hand and arm resting next to his closed 

notebook and pen. Detective Molleen spoke in a conversational tone. 

 -8- 
POTTS: What's that mean? 

DETECTIVE: I can't put you on the phone to 

contact one right now, 'cause they ain't workin' 

right now. Okay? You're arrested, and you'll be 

charged and we'll just go from there. 

POTTS: Well fuck it, then, I don't want a damn 

lawyer. What do you want to know? 

DETECTIVE: Just the truth, Kevin, just the 

truth. Things get out of control? 

Potts then confessed that he had killed Wilson. About 

forty-five seconds elapsed between Potts' request to "talk to a 

lawyer" and his question, "What do you want to know?" 

 Approximately twenty-five minutes later, Detective Molleen 

briefly left the room. Upon returning, Detective Molleen told Potts 

he was going to advise him of his rights again. Potts answered, "I 

know them." Detective Molleen said he understood that but again read 

Potts his Miranda rights. The detective then asked Potts, "Do you 

want to talk about this thing again?" Potts replied, "Sure." As 

Detective Molleen took notes, Potts again confessed. At a later 

break in the interview, while Potts was alone, he said out loud: 

"I'm going jail for the rest of my life." 

 At the suppression hearing, Potts testified (1) that the night 

before his arrest, he and Hopkins had smoked crack throughout the 

night; (2) when they ran out of crack on the morning of the arrest, 

they began smoking marijuana; and (3) the last time he had slept 

prior to the arrest was two days before. However, Detective Molleen 

testified that during the interview 

 -9- 
[Potts a]ppeared to be fine. Didn't look like he 

was intoxicated. I didn't smell alcohol. Didn't 

look like he was on drugs. Coherent. We had a 

good conversation, and he was articulate in his 

answer. 

Potts admitted he never told the detective during the interview that 

he was either high on drugs or tired.

 Potts testified that, "I had been informed of what my rights 

were, but it doesn't necessarily mean that you know it [sic]." Potts 

further testified that he interpreted Detective Molleen's statement, 

"You'll get [an attorney] when you get one," to mean he did not have 

a right to an attorney and he "assumed right off the fact that I 

wasn't going to get one anytime." 

 Detective Molleen testified that he considered the interview 

over the moment Potts stated he wanted to speak with an attorney, and 

he prepared to leave the room. He explained that he told Potts he 

could not speak with his mother at that time because 

[t]here were many things I had to do with the 

arrest procedures for him. Ultimately a couple 

of hours down the road he was going to run into 

her over at intake. It wasn't part of the 

procedure, and at that time it wasn't that I 

could work it in. 

The detective testified that his statement, "You'll get one when 

you get one," was not made in an attempt to elicit an incriminating 

response from Potts. Rather, the statement reflects, "[I]t's not 

part of the police department procedure for me to provide him with an 

 -10- 
attorney, and it's pretty much incumbent on his part to take care of 

that arrangement." 

II. 

ANALYSIS 

 In reviewing a trial court's denial of a motion to suppress, we 

view the evidence in the light most favorable to the Commonwealth as 

the party that prevailed below, and grant to its evidence "all 

reasonable inferences deducible therefrom." Giles v. Commonwealth, 

28 Va. App. 527, 532, 507 S.E.2d 102, 105 (1998) (citations omitted). 

In addition, 

[a]lthough we review the trial court's findings 

of historical fact only for "clear error," we 

review de novo the trial court's application of 

defined legal standards to the facts of the case. 

Whether the defendant invoked his right or her 

right to counsel, and thereafter knowingly and 

voluntarily waived that right, requires that we 

apply defined legal standards to the historical 

facts. 

Id. at 532-33, 597 S.E.2d at 105 (citations omitted). 

 In order for the confession of a criminal defendant in custody 

to be admissible as evidence at trial, the police must advise the 

defendant of the right to have counsel present during interrogation. 

See Quinn v. Commonwealth, 25 Va. App. 702, 

710-11, 492 S.E.2d 470, 474 (1997); see also Edwards v. Arizona, 451 

U.S. 477, 485-86 (1981); Miranda v. Arizona, 384 U.S. 436, 469, 475 

(1966). If the suspect invokes his right to counsel during 

interrogation, "all police-initiated interrogation regarding any 

 -11- 
criminal investigation must cease . . . 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." Quinn, 25 Va. App. at 710-11, 492 

S.E.2d at 474-75. 

 The United States Supreme Court in Edwards, 451 U.S. at 484-87, 

adopted a three-part test to evaluate the admissibility of a 

statement given after the right to counsel has been invoked. 

First, the trial court must determine whether the 

accused "unequivocally" invoked his or her right 

to counsel. Second, the trial court must 

determine whether the accused, rather than the 

authorities, initiated further discussion or 

meetings with the police. Third, if the accused 

did initiate further discussions or conversations 

with the police, the trial court must then 

ascertain whether the accused knowingly and 

intelligently waived the previously invoked right 

to counsel. 

Giles, 28 Va. App. at 532, 507 S.E.2d at 105 (citations omitted). 

 Without question, Potts unequivocally invoked his right to 

counsel, so the first prong of the Edwards test is met. We must 

determine (1) whether Potts initiated the further discussion with 

police after he invoked his right to counsel and, if so, (2) whether 

that discussion without legal counsel present was done voluntarily. 

 In regard to Edwards' second prong, it is clear from the record 

that Potts initiated discussions with police after invoking his right 

to counsel. In Edwards, the Supreme Court of the United States held 

that 

 -12- 
an accused, . . . having expressed his desire to 

deal with the police only through counsel, is not 

subject to further interrogation by the 

authorities until counsel has been made available 

to him, unless the accused himself initiates 

further communication, exchanges, or 

conversations with the police. 

451 U.S. at 484-85. Elaborating on this standard, the Court in 

Oregon v. Bradshaw, 462 U.S. 1039 (1983), recognized that 

[t]here are some inquiries, such as a request for 

a drink of water or a request to use a telephone, 

that are so routine that they cannot be fairly 

said to represent a desire on the part of an 

accused to open up a more generalized discussion 

relating directly or indirectly to the 

investigation. Such inquiries or statements, by 

either an accused or a police officer, relating 

to routine incidents of the custodial 

relationship, will not generally "initiate" a 

conversation in the sense in which that word was 

used in Edwards. 

Id. at 1045. However, the Court held that a custodial suspect's 

question, "Well, what is going to happen to me now?," asked after the 

request for counsel but prior to further interrogation by the 

authorities, initiated further conversation, validating the suspect's 

subsequent waiver of his Miranda rights. Id. at 1045-47. 

 Upon Potts' invocation of the right to counsel, Detective 

Molleen wrote the statement, "I want to talk to a lawyer," in his 

notes and closed the notebook. Detective Molleen then prepared to 

leave the room when Potts asked the detective, "Can I contact my 

mom?" This question and the detective's answer, as well as the 

exchange following it, were permissible as "relating to routine 

 -13- 
incidents of the custodial relationship." Id. at 1045. These 

inquiries alone would not constitute an initiation of conversations 

with the police sufficient to waive the right to counsel. 

 However, after the detective answered Potts' procedural 

questions, Potts unequivocally continued the conversation, waiving 

his right to counsel when he told the detective, "[W]ell fuck it, 

then, I don't want a damn lawyer. What do you want to know?" In 

this case, Potts' waiver of his right to counsel was just as clear 

and unequivocal as his prior assertion of it. Potts' statement and 

inquiry plainly show a willingness to further discuss the detective's 

investigation. The second prong of the Edwards admissibility test is 

met. 

 As to the last prong of the Edwards test, Potts claims he was 

subjected to coercive circumstances and, therefore, his waiver and 

ensuing confession were involuntary. In assessing voluntariness, the 

court must determine 

whether "the statement is the 'product of an 

essentially free and unconstrained choice by its 

maker,' or . . . whether the maker's will 'has 

been overborne and his capacity for selfdetermination critically impaired.'" Stockton v. 

Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 

381 (quoting Schneckloth v. Bustamonte, 412 U.S. 

218, 225 (1973)). In determining whether the 

waiver was knowing and intelligent, the court 

must examine the totality of the circumstances. 

Fare v. Michael C., 442 U.S. 707, 717 (1979). 

Where a juvenile is involved, "[t]his includes 

evaluation of the juvenile's age, experience, 

education, background, and intelligence, and 

whether he has the capacity to understand the 

 -14- 
warnings given him, the nature of his Fifth 

Amendment rights, and the consequences of waiving 

those rights." Id. at 725; see also Green v. 

Commonwealth, 223 Va. 706, 710, 292 S.E.2d 605, 

607 (1982); Harris v. Commonwealth, 217 Va. 715, 

719, 232 S.E.2d 751, 755 (1977); Grogg v. 

Commonwealth, 6 Va. App. 598, 612, 371 S.E.2d 

549, 556 (1988). 

Roberts v. Commonwealth, 18 Va. App. 554, 557-58, 445 S.E.2d 709, 711 

(1994). 

 In reviewing the totality of the circumstances in this case, the 

trial court's ruling that Potts' confession was knowingly, 

intelligently and voluntarily made is supported by the evidence. 

 While Potts was seventeen years old and perhaps a high school 

dropout at the time of his arrest, he appears intelligent and 

articulate. Detective Molleen testified that Potts appeared to be 

fine and did not look high on drugs or sleep deprived. Detective 

Molleen's impression is clearly supported by the videotape of the 

interview, from which the trial court could reasonably find that 

Potts' conversation was appropriate, his answers were responsive, he 

did not have difficulty focusing on what was transpiring, and while 

he cried on occasion, he remained calm. 

 Although "it is desirable to have a parent, counsel or some 

other interested adult or guardian present when . . . a juvenile 

waives fundamental constitutional rights and confesses to a serious 

crime . . . , the mere absence of a parent or counsel does not render 

the waiver invalid." Grogg, 6 Va. App. at 613, 371 S.E.2d at 557. 

 -15- 
The absence of a parent is but one factor to be considered in the 

totality of the circumstances and is insufficient by itself to render 

Potts' confession involuntary. Id.; see also Novak v. Commonwealth, 

20 Va. App. 373, 387-88, 457 S.E.2d 402, 409 (1995) (absence of 

parent at questioning of sixteen-year-old defendant insufficient to 

preclude finding that confession was voluntary). 

 We find no support for the allegation of coercion. Potts was 

questioned by one plainclothes detective in a room large enough for 

him to get up and move around, and he wore no restraints. Cf. Grogg, 

6 Va. App. at 614, 371 S.E.2d at 557 (questioning of juvenile 

defendant, not in handcuffs, by three plainclothes officers was not 

"coercive" environment). As Potts confirmed at the suppression 

hearing, Detective Molleen never threatened him or told him to keep 

talking once he had waived his rights. 

 At no time did Detective Molleen tell Potts that he could not 

speak with an attorney; instead, Detective Molleen told Potts that he 

could not provide him with one right then and that Potts would have 

one when he arranged for one. As the Supreme Court of Virginia has 

observed: "Miranda nowhere requires that a suspect be told he has 

the right to immediate appointment of counsel. Indeed, language in 

Miranda negates this very proposition." Poyner v. Commonwealth, 229 

Va. 401, 409, 329 S.E.2d 815, 822, cert. denied, 474 U.S. 865 (1985). 

 Potts testified at the suppression hearing that while he was 

read his rights, he did not necessarily understand them. He 

 -16- 
testified that he thought he would be able to go home if he talked to 

the police. Assuming Potts mistakenly believed this, he also 

admitted that Detective Molleen never threatened him, never 

encouraged him to talk and never promised leniency or gave any other 

inducements. Potts' mistake, therefore, was not the result of police 

coercion, the necessary predicate for a finding that a confession is 

involuntary. Bottenfield v. Commonwealth, 25 Va. App. 316, 323, 487 

S.E.2d 883, 887 (1997) (citing Colorado v. Connelly, 479 U.S. 157, 

167 (1986)). 

 Upon a review of the record and applicable law, we hold the 

trial court could reasonably find that Potts' confession was properly 

admissible under Edwards. Potts initiated the discussion with police 

after invoking his right to counsel. The Potts initiated 

conversation led to his subsequent confession without legal counsel 

present and that confession was knowingly, intelligently and 

voluntarily made. 

The denial of the motion to suppress was proper, and the 

conviction is, accordingly, affirmed. 

 Affirmed. 

 -17- 
Benton, J., dissenting. 

 I would hold that the trial judge admitted the juvenile's 

statements in evidence in violation of the Fifth Amendment. 

 I. 

 One of the constitutional safeguards established by Miranda v. 

Arizona, 384 U.S. 436 (1966), is the right of an accused person to 

have an attorney present at a custodial interrogation and to end the 

interrogation by invoking this right. Id. at 469, 474-75. See also

Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). The Supreme Court 

has held that "the rigid rule [of Miranda means] that an accused's 

request for an attorney is per se an invocation of his Fifth 

Amendment rights." Fare v. Michael C., 442 U.S. 707, 719 (1979). 

Thus, if, in violation of these rights, "the interrogation continues 

without the presence of an attorney and a statement is taken, a heavy 

burden rests on the government to demonstrate that the defendant 

knowingly and intelligently waived his privilege against selfincrimination and his right to retained or appointed counsel." 

Miranda, 384 U.S. at 475 (citing Escobedo v. Illinois, 378 U.S. 478, 

490 n.14 (1964)). 

 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." 

Pursuant to Edwards and its progeny, once the 

 -18- 
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. 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." 

Quinn v. Commonwealth, 25 Va. App. 702, 710-11, 492 S.E.2d 470, 474 

(1997) (citations omitted). 

 The Supreme Court has also explained "that an accused 

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

through counsel, is not subject to further interrogation 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. The 

rule in "Edwards focuses on the state of mind of the suspect and not 

of the police." Arizona v. Roberson, 486 U.S. 675, 687 (1988). 

 Before Detective Molleen began interrogating Kevin Michael 

Potts, who was seventeen years old and lived with his parents, he was 

aware that Potts' mother had refused permission for the police to 

interview Potts. The detective disregarded her express request. 

After he read Miranda warnings to Potts, the following colloquy 

occurred: 

 -19- 
DET. MOLLEEN: I think some things kind of got 

out of hand a couple of weeks back, situation got 

out of control, maybe Dawain was in a little bit 

of trouble with a particular person, maybe you 

tried to help him out, it got out of hand, maybe 

somebody got hurt as a result of it, does that 

sound kind of familiar? 

POTTS: I don't know. I want to talk to a 

lawyer. 

DET. MOLLEEN: You want to talk to a lawyer. 

POTTS: And can I contact my mom? 

DET. MOLLEEN: Nope. 

POTTS: She can't talk to me? 

DET. MOLLEEN: Nope. 

POTTS: Nope? What's up with the lawyer, then? 

DET. MOLLEEN: What's up with the lawyer? You'll 

get one when you get one. 

POTTS: What's that mean? 

DET. MOLLEEN: I can't put you on the phone to 

contact one right now, 'cause they ain't workin' 

right now. Okay? You're arrested, and you'll be 

charged and we'll just go from there. 

POTTS: Well fuck it, then, I don't want a damn 

lawyer. What do you want to know? 

DET. MOLLEEN: Just the truth, Kevin, just the 

truth. Things get out of control? 

 Potts unambiguously requested to speak to an attorney. 

Mimicking Potts' request, the detective gave no indication that it 

would be honored and, thus, effectively ignored that request. Potts 

next asked to contact his mother, which was a rational way for a 

juvenile to seek an adult's assistance in obtaining an attorney. If 

we assume the detective intended to honor Potts' request for an 

attorney, it would appear that the detective would have either 

permitted Potts to contact his parents or told him when contact would 

be permitted. Instead, by his blunt, terse refusal of Potts' request 

to speak to his mother, an adult Potts trusted, the detective 

 -20- 
effectively and immediately denied Potts the right to an attorney. 

By telling Potts, "you'll get [an attorney] when you get one," the 

detective essentially communicated to Potts that he had to make those 

arrangements himself. Indeed, the detective testified at the 

hearing, "it's pretty much incumbent on his part to take care of that 

arrangement." At no time did the detective indicate to Potts how his 

right to an attorney would be honored or when. The detective's 

statement, "you're arrested, and you'll be charged and we'll just go 

from there," effectively communicated a rejection of Potts' request 

for counsel. 

 "The concern of the Court in Miranda was that the 'interrogation 

environment' created by the interplay of interrogation and custody 

would 'subjugate the individual to the will of his examiner' and 

thereby undermine the privilege against compulsory selfincrimination." Rhode Island v. Innis, 446 U.S. 291, 299 (1980). As 

the Court noted in Miranda: "If authorities conclude that they will 

not provide counsel during a reasonable period of time in which 

investigation . . . is carried out, they may refrain from doing so 

without violating the person's Fifth Amendment privilege so long as 

they do not question him during that time." 384 U.S. at 474. 

Miranda and Edwards were intended to "dispel the compulsion inherent 

in custodial surroundings." Id. at 458. We ignore reality if we 

assume a juvenile, such as Potts, has the means, maturity, and 

capability to secure on his or her own initiative, while confined in 

 -21- 
jail, an attorney to assist him or her. See Fare, 442 U.S. at 725 

(including a juvenile's age in the determination whether a waiver 

occurred). 

 In addition, the Supreme Court has expressly ruled that 

"custodial interrogation for purposes of Miranda includes both 

express questioning and words or action that . . . the officer knows 

or reasonably should know are likely to 'have . . . the force of a 

question on the accused,' and therefore be reasonably likely to 

elicit an incriminating response." Pennsylvania v. Muniz, 496 U.S. 

582, 601 (1990) (citation omitted). I believe the detective's 

mimicking responses were designed to cause Potts to engage in 

additional conversation. They had the effect of stimulating 

conversation and were the functional equivalent of continuing 

interrogation. The rule in Edwards was not intended to give the law 

enforcement officers an opportunity to use interrogation tactics to 

snare unwary teenagers into asking questions about the means to 

effect their Miranda rights and then to use those inquiries as a 

guise to blatantly disregard constitutionally required procedures. 

When Potts asked to contact his mother, who was his obvious means of 

securing an attorney, the detective curtly denied that request. 

Following this denial, the detective's further mimicking statements, 

"What's up with the lawyer? You'll get one when you get one," 

effectively refused to honor Potts' request. Seeking some 

explanation about his means of contacting an attorney, which the 

 -22- 
detective's responses certainly made illusory, Potts was again 

rebuffed by the detective's response that no attorneys were working. 

This response only served, as did the others, to eliminate Potts' 

options for obtaining an attorney. 

 The officer's technique manifestly raised the level of isolation 

and hostility imposed on this juvenile by denying him even the most 

basic assurance that his request for counsel would be honored. 

Indeed, the detective never told Potts that the police would honor 

his request for an attorney. His responses to Potts' inquiries about 

an attorney conveyed the unmistakable message that the detective 

considered Potts' request to be frivolous and that an attorney might 

arrive some day "when [Potts arranged to] get one." Potts' 

exasperated statement, "I don't want . . . a lawyer," was the 

culmination of impermissible conduct by the detective. Thus, I would 

hold that the detective's curt and mimicking responses constituted 

badgering that was a continuation of the interrogation in violation 

of Miranda. I would also hold that Potts' inquiries were "so routine 

that they cannot be fairly said to represent a desire . . . to . . . 

'initiate' a conversation in the sense in which that word was used in 

Edwards." Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). 

 II. 

 In addition to these violations of Miranda and Edwards, the 

record establishes that the Commonwealth failed to prove Potts' 

statements were voluntarily, knowingly, and intelligently made. See

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Miranda, 384 U.S. at 444. Even before Miranda, the Fifth Amendment 

required that confessions be found voluntary before they could be 

admitted as evidence. See Dickerson v. United States, 530 U.S. 428, 

433 (2000). In making the determination whether a statement was 

voluntarily, knowingly, and intelligently made, the trial judge must 

examine the totality of the circumstances, including the 

characteristics of the accused, and determine whether the accused's 

will was overborne by the circumstances surrounding the giving of the 

confession. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). 

The ultimate test remains that which has been the 

only clearly established test in Anglo-American 

courts for two hundred years: the test of 

voluntariness. Is the confession the product of 

an essentially free and unconstrained choice by 

its maker? If it is, if he has willed to 

confess, it may be used against him. If it is 

not, if his will has been overborne and his 

capacity for self-determination critically 

impaired, the use of his confession offends due 

process. 

Culombe v. Connecticut, 367 U.S. 568, 602 (1961). The Supreme Court 

recently reaffirmed that it has "never abandoned this 

. . . jurisprudence, and thus continue[s] to exclude confessions that 

were obtained involuntarily." Dickerson, 530 U.S. at 434. 

 Even if we assume, contrary to the evidence, that Potts 

initiated the conversation that led to the confession, the Supreme 

Court has ruled as follows: 

 If, as frequently would occur in the course of 

a meeting initiated by the accused, the 

conversation is not wholly 

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one-sided, it is likely that the officers will 

say or do something that clearly would be 

"interrogation." In that event, the question 

would be whether a valid waiver of the right to 

counsel and the right to silence had occurred, 

that is, whether the purported waiver was knowing 

and intelligent and found to be so under the 

totality of the circumstances, including the 

necessary fact that the accused, not the police, 

reopened the dialogue with the authorities. 

Edwards, 451 U.S. at 486 n.9. Furthermore, the principle is also 

well established that "even if a conversation taking place after the 

accused has 'expressed his desire to deal with the police only 

through counsel,' is initiated by the accused, where reinterrogation 

follows, the burden remains upon the prosecution to show that 

subsequent events indicated a waiver of the Fifth Amendment right to 

have counsel present during the interrogation." Bradshaw, 462 U.S. 

at 1044. See also Michigan v. Jackson, 475 U.S. 625, 633 n.6 (1986) 

(noting that the accused's request for counsel is "an extremely 

important fact" in considering whether there was a valid subsequent 

waiver of the right to counsel). 

 Noting that special problems exist with respect to waivers by 

juveniles, the Supreme Court has ruled that "[i]f counsel was not 

present for some permissible reason when an admission was obtained 

[from a juvenile], the greatest care must be taken to assure that the 

admission was voluntary, in the sense not only that it was not 

coerced or suggested, but also that it was not the product of 

ignorance of rights or of adolescent fantasy, fright or despair." In 

re Gault, 387 U.S. 1, 55 (1967). See also Haley v. Ohio, 332 U.S. 

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596, 599-600 (1948). Clearly, the detective who interrogated Potts 

did not use "the greatest care" to ensure that Potts' "admission was 

voluntary." Id. First, he ignored Potts' request for counsel. He 

then flatly refused to allow Potts to consult with his parent, a 

trusted adult who had the wherewithal to secure counsel for Potts, 

and, indeed, who had requested the police not to question Potts in 

her absence. As if to ensure that Potts would feel the coercive 

nature of his detention, the officer next misrepresented to Potts 

that no lawyer could be secured at that hour. Lastly, he told Potts 

that the process would continue without informing Potts whether or 

when he would have an attorney. In short, this officer conveyed to 

Potts the unmistakable message that he was on his own in trying to 

secure an attorney and in dealing with the police. 

 Recognizing again the special problems of juveniles, the Supreme 

Court observed the following in a case where the juvenile failed to 

ask for a lawyer or parent: 

[The period] -- during which time the boy's 

mother unsuccessfully tried to see him and he was 

cut off from contact with any lawyer or adult 

advisor -- gives the case an ominous cast. The 

prosecution says that the boy was advised of his 

right to counsel, but that he did not ask either 

for a lawyer or for his parents. But a 14-yearold boy, no matter how sophisticated, is unlikely 

to have any conception of what will confront him 

when he is made accessible only to the police. 

That is to say, we deal with a person who is not 

equal to the police in knowledge and 

understanding of the consequences of the 

questions and answers being recorded and who is 

unable to know how to protect his own interests 

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or how to get the benefits of his constitutional 

rights. 

 . . . He cannot be compared with an adult in 

full possession of his senses and knowledgeable 

of the consequences of his admissions. He would 

have no way of knowing what the consequences of 

his confession were without advice as to his 

rights - from someone concerned with securing him 

those rights - and without the aid of more mature 

judgment as to the steps he should take in the 

predicament in which he found himself. A lawyer 

or an adult relative or friend could have given 

the petitioner the protection which his own 

immaturity could not. Adult advice would have 

put him on a less unequal footing with his 

interrogators. Without some adult protection 

against this inequality, a 14-year-old boy would 

not be able to know, let alone assert, such 

constitutional rights as he had. To allow this 

conviction to stand would, in effect, be to treat 

him as if he had no constitutional rights. 

Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962). 

 III. 

 In summary, the record in this case establishes that the 

detective denied Potts' express request for counsel; he denied Potts' 

explicit request to speak to his mother, which was an implicit 

request for aid in the securing of his rights; and he refused those 

requests in such a fashion that Potts was given the unmistakable 

message that he had to fend for himself in dealing with the police. 

I would hold that the record established a violation of Miranda, a 

violation of Edwards, and a confession that was not voluntary, 

knowing, or intelligent. Accordingly, I would hold that the trial 

judge erred in refusing to suppress the confession, and I would 

reverse the conviction and remand for a new trial.

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