Preview:

Present:    Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Lacy, S.J.
SARE ZEKTAW
v.    Record No.  081738                                           OPINION BY JUSTICE DONALD W. LEMONS
                                                                   June  4,  2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether Sare Zektaw
(“Zektaw”) clearly, unambiguously and unequivocally invoked
his right to counsel during a custodial interrogation.
I.    Facts and Proceedings Below
Zektaw was charged with rape, attempted sodomy,
abduction, and assault and battery.    Zektaw maintains that the
sexual encounter that is the subject of these charges was
consensual.
Zektaw filed a motion to suppress the statements he made
to police.    The trial court denied Zektaw’s motion to suppress
and held that Zektaw’s statement was not  “a clear and
unequivocal request for a lawyer.”    Detective Robert Hickman
testified during the suppression hearing that Zektaw came to
the police station after he learned that a police officer was
looking for him at his work place.    While he and another
detective were trying to determine the nature of the
investigation, Zektaw sat in an interrogation room and filled
out a  “history sheet” with Detective Sandra Hein.    Zektaw was




“conversational” and responsive during this time, and he
stated that he believed the investigation  “involved a female”
and he  “wanted to know what accusations she made against him.”
Detective Hickman learned that there was an arrest warrant for
rape outstanding against Zektaw.
Detective Hickman testified that Zektaw was still
“talkative” and still offered  “commentary” after he was
informed of the arrest warrant for rape.    Detective Hein read
Zektaw his Miranda rights and  “went through each individual
right on the rights waiver sheet with him and asked him to
tell her if he understood, and if he did understand, then he
was to initial next to each one of those rights.”    Zektaw
responded that he understood each of those rights and also
placed his initials next to each recitation of the various
rights on the waiver form.    Detective Hickman witnessed Zektaw
waive his rights as he read the waiver out loud and signed the
waiver form.    This process took  “approximately four minutes”
to complete.    Zektaw’s waiver form was admitted as evidence at
the suppression hearing.
After Zektaw waived his Miranda rights, Detective
Hickman, Detective Hein, and Zektaw continued their
conversation.    Detective Hickman testified that  “[a]fter
explaining to  [Zektaw] what the charge was, Detective Hein
just impressed upon him the fact that if he had a version  [of]
2




a story to tell, that he should tell it to us.”    Specifically,
Detective Hein
about a minute and half, two minutes after the
completion of the rights waiver,  .  .  . made a
statement to  [Zektaw] that he should tell his
story.    She stated to him, yes your whole story
out there, and then we’ll know who to believe.
And he stated  “Right, and I’d really like to
talk to a lawyer because this  - oh my God, oh,
my Jesus, why?” And then the conversation
continued between Detective Hein and  [Zektaw].
(Emphasis added.)    On cross-examination, Detective Hickman
conceded  “other detectives in the room continued to ask
[Zektaw] questions after he said he would like to talk to a
lawyer.”    Zektaw did not mention a lawyer again during the
rest of the hour-and-a-half interview, and he remained
talkative.    Detective Hickman also testified that Zektaw’s
demeanor did not change in any way during the entire course of
the interrogation.
At trial, the Commonwealth introduced Zektaw’s statements
into evidence through Detective Hickman’s testimony.    Detective
Hickman testified that Zektaw told him that,  “[h]e went over to
[SG’s] apartment,” they got into a  “heated discussion and he
became angry” and that
at one point he choked her, began calling her
some names, called her a b****, asked her words
to the effect of what the f*** is this and he
then  - initially, he said that she fell.    And
then amended that to he pushed her and she fell
down causing a scratch, I believe was his word,
on her hip, I believe.
3




Detective Hickman also testified that Zektaw said he and SG
“sat on the couch and spoke for a while longer and they then
went into the bedroom and had sex.”
The Commonwealth also introduced evidence at trial from
the victim, SG, testimony from a Sexual Assault Nurse Examiner
who stated that  “to a reasonable degree of medical certainty”
the injuries she observed on SG were consistent with
nonconsensual sex, testimony of Fasil Alemu  (SG’s friend and
neighbor) and Yeftusen Tiruneh  (SG’s cousin).    Both Fasil
Alemu and Yeftusen Tiruneh corroborated SG’s version of the
events.    Furthermore, the Commonwealth introduced transcripts
of voicemail left by Zektaw on SG’s telephone and a recorded
telephone conversation between SG and Zektaw in which Zektaw
also partially corroborated SG’s testimony.
The jury found Zektaw guilty of rape, abduction, and
assault and battery and determined Zektaw’s punishment to be
eight years for the rape conviction, one year for the
abduction conviction, and one year and a  $2500 fine for the
assault and battery conviction.    Zektaw appealed to the Court
of Appeals.
The Court of Appeals affirmed Zektaw’s convictions and
the trial court’s decision denying Zektaw’s motion to
suppress.    Zektaw v. Commonwealth,  52 Va. App.  230,  238,  240
4




663 S.E.2d  93,  97,  98  (2008).    In affirming the trial court’s
denial of Zektaw’s motion to suppress, the Court of Appeals
stated:
[Zektaw’s] reference to a lawyer during the
initial stage of his discussion with the police
officers may be interpreted as an exclamation of
disbelief, or of his awareness, regarding the
situation in which he found himself. Whether
appellant was requesting  [that] an attorney be
present during the interrogation or was simply
registering disbelief or awareness under the
circumstances is not clear. His statement, open
to more than one interpretation, was ambiguous.
Tellingly, during the conversation that followed
his statement, appellant did not again make a
reference to an attorney, nor did he state he
wished to consult with one during the ensuing
interview.
Id. at  238,  663 S.E.2d at  96.
We awarded Zektaw an appeal on the following assignment
of error:
1. The Court of Appeals erred in upholding the erroneous
rulings of the trial court and in deciding the
defendant’s words were ambiguous and that he did not
clearly invoke his right to counsel.
II.    Analysis
A. Waiver
The Commonwealth argues that Zektaw waived his objection
to the admissibility of his statements by using the statements
himself at trial.    We have held that  “[t]he rule is that
‘where an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces
5




evidence of the same character, he thereby waives his
objection, and we cannot reverse for the alleged error.’”
Hubbard v. Commonwealth,  243 Va.  1,  9,  413 S.E.2d  875,  879
(1992)  (quoting Saunders v. Commonwealth,  211 Va.  399,  401,
177 S.E.2d  637,  638  (1970)); see also Drinkard-Nuckols v.
Andrews,  269 Va.  93,  102,  606 S.E.2d  813,  818  (2005).
However, there are
some limitations on the operation of the waiver
rule.    For instance, when the objecting party
elicits evidence of the same character either
during cross-examination of a witness or in
rebuttal testimony, a duly made objection is
not waived:
We have never held that the mere
cross-examination of a witness or the
introduction of rebuttal evidence,
either or both, will constitute a
waiver of an exception to testimony
which has been duly taken.    To
constitute such a waiver the party
objecting to the evidence must have
gone further and introduced on his
own behalf testimony similar to that
which the objection applies.
Drinkard-Nuckols,  269 Va. at  102,  606 S.E.2d at  818  (quoting
in part from Snead v. Commonwealth,  138 Va.  787,  801-02,  121
S.E.  82,  86  (1924)); see also Culbertson v. Commonwealth,  137,
Va.  752,  757,  119 S.E.  87,  88  (1923).
Zektaw did not introduce any new evidence on his own
behalf that is  “of the same character” as the statements to
which he objected.    Furthermore, Zektaw’s use of his
6




statements was during his cross-examination of Detective
Hickman, the witness who introduced Zektaw’s statements into
evidence.    The waiver rule is inapplicable under these
circumstances.
B. Invocation of Right to Counsel
When a  “circuit court did not make any factual findings
regarding what  [the defendant] actually said because the
parties did not dispute the content of his statements to the
police” our  “appellate consideration of the circuit court’s
denial of  [the defendant’s] motion to suppress is restricted
to a de novo review of the legal issue whether  [his] words,
taken in context, were sufficient to invoke his right to
counsel.”    Commonwealth v. Hilliard,  270 Va.  42,  50,  613
S.E.2d  579,  584  (2005).
The right to have counsel present during a custodial
interrogation is an axiom of American law expressed in Miranda
v. Arizona,  384 U.S.  436  (1966) and its progeny. The United
States Supreme Court in Miranda stated that
[i]f the individual states that he wants an
attorney, the interrogation must cease until an
attorney is present.
[i]f 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 self-
7




incrimination and his right to retained or
appointed counsel.
384 U.S. at  474-75.
In the case of Edwards v. Arizona,  451 U.S.  477
(1981), the United States Supreme Court explained
when an accused has invoked his right to have
counsel present during custodial interrogation,
a valid waiver of that right cannot be
established by showing only that he responded to
further police-initiated custodial interrogation
even if he has been advised of his rights.    We
further hold 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.
Id. at  484-85  (footnote omitted).
In Arizona v. Roberson,  486 U.S.  675  (1988), the United
States Supreme Court stated
“that it is inconsistent with Miranda and its
progeny for the authorities, at their instance,
to reinterrogate an accused in custody if he has
clearly asserted his right to counsel.”                      451 U.S.
at  485.                                                     .  .  .  [R]einterrogation may only occur
if  “the accused himself initiates further
communication, exchanges, or conversations with
the police.”    Ibid.    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
self-incrimination,”  384 U.S. at  467, 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
8




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.
Id. at  680-81  (footnote omitted).
However, the invocation of the right to counsel must be
clear, unambiguous, and unequivocal.    In Davis v. United
States,  512 U.S.  452,  459  (1994), the Court held that
[a]s we have observed,  “a statement either is
such an assertion of the right to counsel or it
is not.”    Smith v. Illinois,  [469 U.S.  91,  97-98
(1984).    An accused] must articulate his desire
to have counsel present sufficiently clearly that
a reasonable police officer in the circumstances
would understand the statement to be a request
for an attorney.    If the statement fails to meet
the requisite level of clarity, Edwards does not
require that the officers stop questioning the
suspect.
Here, the question is whether Zektaw’s statement  “Right, and
I’d really like to talk to a lawyer because this  - oh my God,
oh, my Jesus, why?” under an objective,  “reasonable police
officer” test was a clear, unambiguous, unequivocal request
for counsel.
Since Miranda and Edwards, we have reviewed several cases
to determine whether a defendant’s statement clearly,
unambiguously, and unequivocally invoked his right to counsel.
In some cases the defendants’ statements were determined to be
questions seeking clarification of their rights.    See
Hilliard,  270 Va. at  51,  613 S.E.2d at  585  (“  ‘Can I have
9




someone else present too, I mean just for my safety, like a
lawyer like y’all just said?’  ” was not an unequivocal request
for counsel); Commonwealth v. Redmond,  264 Va.  321,  330,  568
S.E.2d  695,  700  (2002), cert. denied,  538 U.S.  930  (2003)
(“  ‘Can I speak to my lawyer?    I can’t even talk to  [a] lawyer
before I make any kinds of comments or anything?,’ were not a
clear and unambiguous assertion of his right to counsel”);
Mueller v. Commonwealth,  244 Va.  386,  396,  422 S.E.2d  380,  387
(1992), cert. denied,  507 U.S.  1043  (1993)  (“  ‘Do you think I
need an attorney here?’  ” did not constitute a request for
counsel); Eaton v. Commonwealth,  240 Va.  236,  250,  252,  397
S.E.2d  385,  393,  395  (1990), cert. denied,  502 U.S.  824  (1991)
(“You did say I could have an attorney if I wanted one?” was
equivocal); and Poyner v. Commonwealth,  229 Va.  401,  410,  329
S.E.2d  815,  823, cert. denied,  474 U.S.  865  (1985)  (“  ‘Didn’t
you say I have the right to an attorney?’  .  .  . was not a
request for counsel  .  .  .  [a]t most, it sought to clarify one
of the rights of which he had already been advised”).
In Hilliard we held that the defendant’s request that he
“would like to have somebody else in here because I may say
something I don’t even know what I am saying, and it
might  .  .  . jam me up” did not  “‘clearly and unambiguously
communicate a desire to invoke his right to counsel.’”                  270
Va. at  52,  613 S.E.2d at  585-86.    We also held that a
10




defendant’s statement that  “‘he felt like he might want to
talk to a lawyer’  .  .  . was couched in ambiguous terms to the
effect that he might want to talk to a lawyer.”    Bunch v.
Commonwealth,  225 Va.  423,  430,  433,  304 S.E.2d  271,  275,  276,
cert. denied,  464 U.S.  977  (1983).    Additionally, we have held
that  “  ‘I’ll be honest with you, I’m scared to say anything
without talking to a lawyer” is an expression of a defendant’s
“reservation about the wisdom of continuing the interrogation
without consulting a lawyer; however, it does not clearly and
unambiguously communicate a desire to invoke his right to
counsel.”    Midkiff v. Commonwealth,  250 Va.  262,  265,  267,  462
S.E.2d  112,  114,  115  (1995).    Finally, the United States
Supreme Court held that  “‘Maybe I should talk to a lawyer’-
was not a request for counsel.”    Davis,  512 U.S. at  462.
However, in Hilliard additional statements by the
defendant were considered.    We held that when the defendant
stated  “  ‘Can I get a lawyer in here?’  ” and the detective
responded,  “  ‘Do you want to do that?’  ” and the defendant
then said  “  ‘I already have a lawyer.    I mean, I can talk to
you, don’t get me wrong.    But I just want to make sure I
don’t, like I said before, just jam myself up’  ” was a clear
invocation of the defendant’s right to counsel.                          270 Va. at
52,  613 S.E.2d at  586.
11




In Smith v. Illinois,  469 U.S.  91  (1984), the United
States Supreme Court considered a case in which the police
officer said,  “  ‘You have a right to consult with a lawyer and
to have a lawyer present with you when you’re being
questioned. Do you understand that?’  ”    and the defendant
responded,  “  ‘Uh, yeah. I’d like to do that.’  ”    Id. at       93.
The Court held that such an exchange was an unambiguous
invocation of the right to counsel.    See id. at  92.
Additionally, the United States Supreme Court also held in
Edwards that the defendant sufficiently invoked his Miranda
rights when he stated  “I want an attorney before making a
deal.”                                                             451 U.S. at  487,  479.
The Commonwealth argues that Zektaw’s statement,  “Right,
and I’d really like to talk to a lawyer because this  - oh my
God, oh my Jesus, why?,” was ambiguous and equivocal.
Specifically, the Commonwealth contends that Zektaw’s
statement was ambiguous and was not a clear assertion of his
right to counsel because  “[t]here were no pauses between
Zektaw’s various phrases; it was just one long sentence, and
afterward the conversation between Detective Hein and Zektaw
continued.    The defendant made no further mention of having an
attorney present.    He continued asking questions and his level
of talkativeness never varied.”    We do not agree.
12




Zektaw’s statement was about  “a minute and half, two
minutes” after he completed his rights waiver form and came as
a response to Detective Hein’s question for him to tell his
side of the story.    Zektaw was not asking the police to clarify
his rights as in Redmond, Mueller, Eaton, Poyner, and the first
statement in Hilliard.    Nor was Zektaw’s statement asking for
“somebody else,” not a lawyer, to be with him as in the second
statement in Hilliard.    Zektaw also did not state he  “might”
want an attorney as in Bunch and Davis v. United States.
Furthermore, Zektaw’s statement did not express simply a
“reservation about the wisdom of continuing the interrogation
without consulting a lawyer” as seen in Midkiff.    Instead,
Zektaw’s statement is more analogous to the statements made in
Smith v. Illinois, Edwards v. Arizona, and the additional
statements in Hilliard.    Zektaw made clear that he wanted to
talk to a lawyer when he said  “I’d really like to talk to a
lawyer.”    Under an objective test, a reasonable police officer
would have understood Zektaw was requesting counsel.    Zektaw’s
statement clearly, unambiguously, and unequivocally invoked his
right to counsel.    Plainly and simply, the interrogation should
have ceased.
As the United States Supreme Court established,  “a
statement either is such an assertion of the right to counsel
or it is not.”    Smith v. Illinois,  469 U.S. at  97-98  (brackets
13




and internal quotation marks omitted).    The Commonwealth
argues, and the Court of Appeals held, that Zektaw’s statement
was really just  “an exclamation of disbelief, or of his
awareness, regarding the situation in which he found himself.”
Zektaw,  52 Va. App. at  238,  663 S.E.2d at  96.    Presumably, the
Commonwealth and the Court of Appeals are referring to the
latter part of Zektaw’s statement in which he states  “Oh my
God, oh, my Jesus, why?”    This part of Zektaw’s statement may
have been  “an exclamation of disbelief” or an  “awareness  [of
his] situation;” however, it does not withdraw or negate the
clear assertion of his right to counsel when he stated  “Right,
and I’d really like to talk to a lawyer.”    Zektaw clearly
asserted his right to counsel by stating  “I’d really like to
talk to a lawyer” and this unambiguous invocation of his right
to counsel is not made ambiguous by the additional statement
“Oh my God, oh, my Jesus, why?”
Furthermore, the Court of Appeals also mistakenly relies
on the fact that Zektaw did not mention a lawyer again during
the rest of the hour-and-a-half interview as indicating he did
not clearly assert his right to counsel.    However, an
“accused’s subsequent statements are not relevant to the
question whether he invoked his right to counsel.”    Redmond,
264 Va. at  327,  568 S.E.2d at  698; see Smith v. Illinois,  469
U.S. at  98-99  (“Using an accused’s subsequent responses to cast
14




doubt on the adequacy of  [an initial request for counsel] is
intolerable”).    The Court of Appeals erred in relying on the
subsequent responses of Zektaw to determine that Zektaw did not
invoke his right to counsel on the basis that he did not
mention an attorney again.
C. Harmless Error
The Commonwealth argues that even if the trial court’s
denial of Zektaw’s motion to suppress was error, it was
harmless because there was sufficient evidence to convict
Zektaw, without consideration of his incriminating statements.
We do not agree.
As we have previously held
[w]hen a federal constitutional error is
involved, a reversal is required unless the
reviewing court determines that the error is
harmless beyond a reasonable doubt.    Chapman v.
California,  386 U.S.  18,  24  (1967).    The
reviewing court must determine  “  ‘whether there
is a reasonable possibility that the evidence
complained of might have contributed to the
conviction.’  ”    Id. at  23  (quoting Fahy v.
Connecticut,  375 U.S.  85,  86-87  (1963)).    In
making that determination, the court must
consider, among other factors,  “the importance
of the tainted evidence in the prosecution’s
case, whether that evidence was cumulative, the
presence or absence of evidence corroborating
or contradicting the tainted evidence on
material points, and the overall strength of
the prosecution’s case.”    Lilly v.
Commonwealth,  258 Va.  548,  551,  523 S.E.2d  208,
209  (1999)  (citing Delaware v. Van Arsdall,  475
U.S.  673,  684  (1986)).
15




Pitt v. Commonwealth,  260 Va.  692,  695,  539 S.E.2d  77,  78
(2000).    Furthermore, in Arizona v. Fulminante,  499 U.S.  279
(1991), the United States Supreme Court, in determining whether
the admission of a wrongfully obtained confession into evidence
was harmless, considered whether the confession could have
influenced the sentencing phase.    Id. at  301-02.    We have also
stated that whether a defendant’s sentencing was affected by an
error at trial is a factor in our harmless error analysis.
Billips v. Commonwealth,  274 Va.  805,  810,  652 S.E.2d  99,  102
(2007).
Zektaw’s statements provided admissions that  “he went over
to  [SG’s] apartment,” they got into a  “heated discussion and he
became angry” and that
at one point he choked her, began calling her
some names, called her a b****, asked her words
to the effect of what the f*** is this and then
- initially he said that she fell.    And then
amended that to he pushed her and she fell down
causing a scratch, I believe was his word, on
her hip, I believe.
Detective Hickman also testified that Zektaw said he and SG
“sat on the couch and spoke for a while longer and they then
went into the bedroom and had sex.”
We cannot conclude beyond a reasonable doubt that there is
no reasonable possibility that Zektaw’s statements did not
contribute to his convictions or to the severity of the jury’s
recommended punishment.    Zektaw’s statements were inculpatory
16




on the assault and battery conviction and made the
Commonwealth’s case much stronger for the rape and abduction
charges.    Furthermore, the jury imposed a sentence of eight
years for rape, which is three years over the statutory minimum
of five years, Code  §  18.2-61(B), and the jury imposed a
sentence of one year with a  $2500 fine for the assault and
battery conviction, which is the statutory maximum under Code
§  18.2-57.    Accordingly, we cannot conclude that the admission
of Zektaw’s statements into evidence was harmless error beyond
a reasonable doubt.
III.    Conclusion
For the reasons stated, we hold that the Court of Appeals
erred in affirming the trial court’s denial of Zektaw’s motion
to suppress.    Accordingly, we will reverse the judgment of the
Court of Appeals and remand the case to the Court of Appeals
with direction to remand to the circuit court for a new trial
if the Commonwealth be so advised.
Reversed and remanded.
17

Download 1081738.pdf

Virginia Law