Much of Lee Boyd Malvo's confession to Fairfax police detective June Boyle and FBI agent Brad Garrett on Nov. 7 will be permitted as evidence during trial.
But not all.
In a 24-page written order, Judge Jane Marum Roush ruled Tuesday, May 6, that anything Malvo said to police after he was read his Miranda rights will be admissible as evidence during trial. Anything Malvo might have said to detectives prior to being read Miranda rights and prior to signing the Miranda form with an "X" will not be permitted as evidence, according to Roush's ruling.
Malvo is charged with the capital murder of Arlington resident Linda Franklin, who was shot outside a Falls Church Home Depot on Oct. 14, 2002. During the October sniper attacks in Virginia, Maryland and Washington, D.C., 10 people were murdered and three were injured.
Malvo's trial is scheduled for Nov. 10, 2003.
UNDER ROUSH'S RULING, prosecutors will be able to use some of the most damning elements of Malvo's confession as admissible evidence against Malvo during trial.
For example, Commonwealth's Attorney Robert F. Horan will be permitted to play an audio tape of Malvo's statements to police detectives. Detective Boyle will be allowed to testify that Malvo laughed while describing the shooting of Franklin and other sniper victims.
"After receiving a full explanation of his rights, Malvo elected to be interviewed by police," wrote Roush.
Commonwealth's Attorney Robert F. Horan Jr., however, will not be allowed to introduce as evidence Malvo's conversation with police before they read him his Miranda rights.
"Some of the questions asked during the period before the Miranda warnings were given elicited potentially incriminating information," wrote Roush, in her 23-page opinion posted by Fairfax County Circuit Court on Tuesday.
MALVO'S ATTORNEYS argued last week that all of his statements should be inadmissible because his request to see a lawyer was ignored.
Horan argued however that Malvo's question, "Do I get to talk to my attorneys?" was not a clear invocation of his Miranda rights.
Roush agreed. "It was at best a request for a clarification of his Miranda rights," she wrote.
But Roush also ruled that some elements of Malvo's confession were collected by detectives before Malvo was fully apprised of his Miranda rights. For example, Malvo was asked how he met sniper defendant John Muhammad, how he moved around the area, if he thought one has the right to harm other people and if he would harm other people, according to Roush's written opinion.
"These questions go beyond permissible booking questions," wrote Roush. "I agree with Malvo that the Miranda warnings should have been given earlier in the interview."