Fairfax conviction reversed for Miranda violation, but prosecutor has option to have a retrial

Fairfax conviction results — and in all other Virginia courts — can next lead to the defendant’s seeking appellate relief. As a Fairfax criminal lawyer, I am very disappointed that a Circuit Court judge in this county found no Miranda violation in Marco Chavarria’s sexual battery case, am delighted that the Virginia Court of Appeals rectified this trial judge error, but wish that Chavarria were made a published rather than unpublished appellate opinion. See Chavarria v. Virginia, Record No. 0769-21-4 (Va. App., July 5, 2022) (unpublished). Thanks to the chief Fairfax public defender for successfully achieving Chavarria’s appellate victory.

Why was criminal defendant Chavarria’s Miranda challenge rejected, leading to this Fairfax conviction reversal?

In this Fairfax conviction reversal, county police arrested Chavarria on suspicion of sexual battery against a minor. Two police officers, one translating in Spanish, met with Chavarria for questioning. Initially, the police correctly advised Chavarria of his Miranda rights. However, the police ignored his clear assertion of his Miranda rights, and continued questioning him until he stopped answering questions around fifteen minutes later. The prelude to Chavarria’s talking was the police advisement of his Miranda rights, followed by a request for him to sign that he was waiving those rights. Wisely, Chavarria replied: “What if I don’t want to talk, do I have to sign?” Answering in English followed by saying the Spanish word for “understand?” (comprende?), the non-interpreting police officer replied in confusing fashion (by referring to Chavarria initially in the third person and after that in the first person): “Obviously there are a lot of questions I have    for him. And I’d like to hear his side of the story. And this is the only chance that you and I are going to get to talk. Comprende, does that make sense?”

For a Virginia trial judge to require a more clear assertion of Miranda rights defies Miranda and its progeny

In this Fairfax conviction reversal case, Chavarria replied  to the foregoing police series of statements with: “Yes [meaning “I understand”], but, no [meaning, “I do not waive my right to remain silent nor my right to a lawyer”], I have to explain to a lawyer because I can’t be answering things.” Nonetheless, then non-interpreting interrogating officer persisted in questioning Chavarria, who proceeded to answer the police officer’s questions, without ever signing a waiver of his Miranda rights, and after the non-interpreting Fairfax police officer misleadingly said that signing the rights waiver form “just tells me that you understand that you have this right, this right, this right, and this right” when the waiver form concludes with a request for the interrogated person to state that he waives his Miranda rights. One of the most damning parts of that interrogation was Chavarria’s answering in the affirmative that “‘[A] few years ago you touch [A.S.] and you apologize and . . . it didn’t happen anymore and you moved on and you guys continue with your lives[?].’” Only when Chavarria asserted fifteen minutes into questioning that ‘ need to talk to a lawyer so he can tell me what to do” did the police stop questioning him

Enforcing Miranda rights requires an unequivocal assertion of those rights

The “‘invocation of the right to counsel must be clear, unambiguous, and unequivocal.’ Zektaw v. Commonwealth, 278 Va. 127, 136 (2009). Whether a suspect’s statements meet that standard is ‘an objective inquiry…'” Chavarria. Chavarria correctly finds in this Fairfax conviction reversal case, that the defendant’s assertion of his right to a lawyer was clearly, unambiguously and unequivocally made, and that this Miranda violation was not harmless error that would have obviated the need for the conviction reversal that Chavarria got granted on appeal.

Fairfax criminal lawyer Jonathan Katz dissects Virginia DUI, felony and misdemeanor prosecutions for your best defense. Call 703-383-1100 for your free in-person consultation with Jon Katz about your court-pending case.