Virginia Legal Trends and More: Request for Counsel ‘Unequivocal,’ But Still ‘Ambiguous’

Interesting article from VLW:

By Deborah Elkins
Published: February 8, 2011

On rehearing en banc, the Court of Appeals upholds a trial court’s conclusion that defendant’s statement, “That’s what I want, a lawyer,” was not a request for counsel that should have been honored by police, because the circumstances surrounding the request indicated defendant may have been asking for an attorney to represent him in court, not to represent him during custodial interrogation.

We hold defendant’s statement was ambiguous because the circumstances leading up to defendant’s statement made it unclear whether he had requested the presence of an attorney during custodial interrogation, or whether he had simply expressed his desire to have an attorney appointed to represent him at trial.

Because of this ambiguity, we conclude the police were permitted to ask defendant limited questions solely for the purpose of clarifying the statement. We hold that police did not violate defendant’s right to counsel under Miranda, and therefore affirm his conviction for robbery, conspiracy, malicious bodily injury, murder and use of a firearm.

Defendant’s statement requesting counsel was certainly unequivocal in content; however, equivocation and ambiguity are two distinct concepts that each warrant our review. Unlike equivocation, ambiguity arises from the circumstances leading up to the statement, along with the statement itself, rather than the words of the statement alone. Here, we must evaluate whether the circumstances could render a suspect’s statement ambiguous, even if the statement’s words are unequivocal.

When we evaluate the specific circumstances of this case, we conclude that the two investigators, as police officers familiar with the circumstances, could reasonably have considered defendant’s request to be ambiguous – that it was just as likely defendant was referring to his desire to have an attorney appointed to represent him before the court as it was that he was requesting an attorney to be present before further questioning.

During his first interrogation, defendant never expressed a desire to have an attorney present during the interrogation. Therefore it was reasonable for the investigators to infer that they had built a rapport with defendant and that he was willing to speak with them without an attorney present. The investigators did not instigate their second meeting with defendant; rather, defendant specifically asked to speak to one of the investigators. Defendant expressed an interest in being released so he could see his young son.

The investigator later had defendant brought over to the police station to talk with him and the other investigator. At that time, both investigators understood that defendant had been transferred for advisement and that once defendant made an appearance in court – whenever that might be – the court would appoint him an attorney.

Since defendant had not previously requested the presence of counsel, and since he had instigated the second meeting, the investigators could have reasonably wondered whether defendant wanted a lawyer present before he talked to them, or whether he wanted a lawyer to aid him with adversarial judicial proceedings. Under the facts of this case, we hold the investigators could have reasonably viewed defendant’s statement as ambiguous, and thus they were permitted to ask defendant clarifying questions when he made that objectively ambiguous statement.

Denial of motion to suppress and convictions affirmed.

Dissent

Elder, J., joined by Felton, C.J.; Frank & Alston, JJ.: I agree generally with the majority’s analysis of the applicable legal principles as far as they go, but I believe the majority overlooks some of the undisputed facts in the record and also fails to apply an important legal principle to those facts. The majority concludes the investigators “merely clarified” defendant’s ambiguous statement, which was both the legally allowable and legally prudent response to that statement. Although it may have been prudent for the detectives to continue questioning defendant if they hoped to elicit an incriminating confession from an unrepresented defendant, I would hold their doing so was not in fact legally allowable.

Defendant’s statement, “That’s what I want, a lawyer, man,” was not remotely ambiguous, either in the abstract or in the context in which it was uttered in this case. To the contrary, it constituted an unequivocal invocation of defendant’s Fifth Amendment right to have counsel present during the custodial interrogation defendant was about to undergo. The investigators were required to cease their interrogation of defendant immediately, and the confession they elicited during the uncounseled interrogation that followed violated defendant’s Fifth Amendment rights.

I respectfully dissent from the majority’s decision affirming admission of defendant’s uncounseled confession.

Stevens v. Commonwealth (Petty, J.) No. 0266-09-3, Feb. 1, 2011; Pittsylvania County Cir.Ct. (Strauss) Larry Gott for appellant; Josephine F. Whalen, AAG II, for appellee. VLW 011-7-031, 22 pp.