Court of Appeals of Virginia Reverses Conviction Based Upon Interrogating Officers Not Respecting Defendant's Invocation of His Right to Counsel

Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), when a suspect is subjected to custodial interrogation, he "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Furthermore, pursuant to Edwards v. Arizona, 451 U.S. 477 (1981),

[W]hen 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....[He] 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.

It's hard to imagine a better example of an Edwards/Miranda violation than the one in the recent opinion of the Court of Appeals of Virginia in Fayne v. Commonwealth, 2025 WL 676488 (Va. App. 2025).

In Fayne, 

Late in the evening of December 18, 2020, [Brian] Fayne and C.K. agreed to meet at a Sunoco gas station in Hampton.1 Fayne and C.K. had previously been in a romantic relationship. C.K. arrived with two others in a white Dodge pickup truck. Fayne was driving a Toyota sport utility vehicle. C.K. got into Fayne's SUV, where she stayed for about two minutes. As she got out and started walking back to the pickup truck, Fayne and C.K. were “arguing loudly.” After C.K. got back in the truck, Fayne allegedly fired eight rounds at the vehicle. A bullet struck C.K. in the torso, killing her and the unborn child she was expecting with Fayne. The gunfire shattered a backseat window, cutting another passenger's face. That passenger also suffered a gunshot wound to his left hand.

A few days later, Fayne was detained and interrogated by detectives at the Hampton Police Department. For more than four hours, Fayne denied responsibility for C.K.'s murder. Thereafter,

Fayne asked the detectives if he could call his father a second time. They agreed on the condition that Fayne put the call on speaker. Fayne's father advised him not to say anything more until Fayne could consult a lawyer.

After that call, Fayne asked if he and an attorney could discuss the allegations with the detectives and a Commonwealth's attorney, all present at the same time. Detective Smith said that was not likely to happen.

Forty minutes later, Fayne unequivocally requested an attorney:

I feel like this is a waste of your time, my time or my money towards a lawyer. And that's why I strongly request him here. I hate to do this in front, but before I give a statement I'm going to give, even before talking to him, I just want him.

Detective Smith did not stop the interrogation.

Smith acknowledged that it was Fayne's right to request an attorney, but Smith warned that once counsel was involved it would be difficult for Fayne to make a statement. Smith said that “it [would] be good for [Fayne's] mental health” to make a statement, but if Fayne hired an attorney, this could be “the last time” he and Fayne could have “a face-to-face like this.”

When Fayne said that he had seen detectives talk to people in jail, Smith pressed him further:

You've said it a couple times. “I want to make a statement but I don't want to say the wrong thing ....” I'm thinking the statement you want to make is about the why. Is that fair to say? Your side. What happened. Why did this happen. That's what you want to tell me, but you don't want to make a mistake. And I get that and I respect that.

Fayne responded, “I don't want to really say nothing.”

Then Detective Hodson urged Fayne to talk:

Well you've already said that ... you feel like you can better elaborate things than me, so say it straight to me, man. Then, as you're saying it, I'll interpret it and if I'm confused about something, I'll ask. Just like I said, start at the beginning, we're asking for two minutes. When [C.K.] got into that car, what was said between the two of you?

After a few minutes of silence, Detective Smith left the room and Detective Hodson asked Fayne if he wanted to say anything to C.K.’s family. Fayne replied, “let them know that everything is figured out.”

Detective Smith returned a few minutes later and told Fayne that new evidence made it even more important for Fayne to tell them what happened:

I want to show you a few more things. This just came in ... hot off the presses.... I don't want you to feel like the walls are closing in, but I want you to see how important it is that we get your side of the story. Because your Instagram search warrants just came back in. Does that pants and jacket and shirt look familiar? And does that silver Toyota SUV look familiar? If I show all of this to a courtroom, with no explanation, it not only looks bad, but it straight up looks nuclear bad. You see what I'm saying? That's why we need to know the why. Because we already know the when, and the who, and the where. And I can do a whole lot more with my Commonwealth[’s Attorney] with an honest, apologetic person, than I can with somebody who clams up and doesn't want to face the facts.

The interrogation then went on in fits and starts with a lot of twists and turns before Fayne finally made an incriminatory statement. In finding that Fayne's rights were violated, the Court of Appeals of Virginia cited to the opinion of the Supreme Court of Virginia in Ferguson v. Commonwealth, 663 S.E.2d 505 (2008), and concluded that

Ferguson controls the outcome here. Like the officers there, the officers here disregarded Fayne's clear invocation of his Miranda right to counsel. Where Ferguson's interrogation took only 45 minutes to result in a confession after the police disregarded his request for a lawyer, the officers here interrogated Fayne for more than an hour after he invoked his right to counsel. And when Fayne said he “strongly” requested an attorney, Detective Smith immediately tried to dissuade him. Smith warned that Fayne would lose his “direct line” to Smith once an attorney got involved. Smith urged that Fayne's mental health would benefit from making a statement; he warned ominously that he had no idea what would happen once he left the interrogation room. Detective Hodson chimed in, assuring Fayne that the detectives would help him tell his side of the story. Detective Smith then produced incriminating photographs from Fayne's social media account, telling him that the evidence would look “nuclear bad” without an explanation from Fayne about what happened. When that did not work, Detective Carpenter tried his luck to elicit a confession. And although Carpenter said he would not have interrogated Fayne had he known of his request for counsel, Roberson and Quinn make clear that Carpenter is deemed to have been on notice that Fayne had invoked his Miranda right to counsel.

-CM