Com. v. Hilliard

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 042204 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 2005
CURTIS DARNELL HILLIARD

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in holding that a defendant's motion to suppress an

incriminating statement should have been granted because he made

the statement in response to police questioning conducted after

he invoked his right to counsel.

Curtis Darnell Hilliard was tried in the Circuit Court of

the City of Richmond on charges of murder, in violation of Code

§ 18.2-32; use of a firearm in the commission of murder, in

violation of Code § 18.2-53.1; maliciously shooting into an

occupied vehicle, in violation of Code § 18.2-154; and

discharging a firearm within 1,000 feet of a school, in

violation of Code § 18.2-280. Before trial, Hilliard filed a

motion to suppress a statement he gave to the police, claiming a

violation of his Fourth, Fifth, and Sixth Amendment rights, as

well as certain rights under the Constitution and Code of

Virginia. The circuit court denied the motion. A jury

convicted Hilliard of all charges and the circuit court

sentenced him to a term of 61 years’ imprisonment.
 On appeal, after a panel of the Court of Appeals affirmed

the convictions in an unpublished opinion, the Court granted

Hilliard’s petition for a rehearing en banc, stayed the mandate

of its earlier decision, and reinstated the appeal. On

rehearing en banc, the Court of Appeals affirmed in part, and

reversed in part, the circuit court’s judgment and remanded the

case to the circuit court for further proceedings. Hilliard v.

Commonwealth, 43 Va. App. 659, 677-78, 601 S.E.2d 652, 661

(2004). The Court held that Hilliard made a clear and

unequivocal request for counsel during the course of a police

interrogation, and that the circuit court erred in refusing to

suppress his later admission that he had been present at the

scene of the crime. Id. at 675, 601 S.E.2d at 660. The

Commonwealth appeals, and Hilliard assigns cross-error.

The facts relevant to the motion to suppress are

undisputed. In July 1999, Anthony Robinson, Jr. was shot and

killed. Hilliard was arrested for Robinson’s murder and, while

in police custody, was questioned by Detectives Levin White and

Martin Kochell of the City of Richmond Police Department.

Detective Kochell advised Hilliard of his Miranda rights

and asked him to sign a waiver form indicating that he

understood his rights, including the right to have an attorney

present during police questioning. Immediately after being

informed of his rights, and before he signed the form, Hilliard

2
made his first reference to an attorney, asking, “Can I have

someone else present too, I mean just for my safety, like a

lawyer like y’all just said?” Detective White replied, “That’s

up to you. Like [Detective Kochell] said, all we’re doing today

is just trying to get your side of the story.”

Detective White informed Hilliard that they could not

continue their discussion until he signed the waiver form.

Hilliard executed the form.

A few minutes later, in response to questioning by the

detectives, Hilliard made his second alleged request for an

attorney, stating:

I need to say that . . . I’m not saying that I know
anything. I’m not saying that I know the person. You
know what I’m saying? The only thing, . . . like I
said, I 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 f[] me up, might jam me up in
some incidents, and I don’t want that to happen, man.

The detectives reassured Hilliard that they were not trying to

“jam him up” and continued the interview.

About an hour later, Hilliard made his third alleged

request for an attorney. In response to Detective White’s

request that Hilliard tell his “side of the story,” the

following exchange occurred:

HILLIARD: Can I get a lawyer in here?

DETECTIVE WHITE: Do you want to do that?

3
 HILLIARD: 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.
And I’ll tell you everything that I know. This is my
word.

DETECTIVE WHITE: Okay. That’s fine.

DETECTIVE KOCHELL: That’s fine.

HILLIARD: I’m not saying that I will say anything
other or just because he’s in here. I just want to,
you know, make sure I have . . . I’d feel more
comfortable.

DETECTIVE KOCHELL: That’s not a problem. We tried to
provide you with a comfortable atmosphere here . . .

HILLIARD: I will say, I will go as far as to say this.
Probably what you all got in [the case file] ain’t
nowhere near.

. . .

DETECTIVE WHITE: Anywhere near . . . of what we know
of why it happened?

HILLIARD: Yeah.

DETECTIVE WHITE: Well, that’s why we want to hear from
you, because we know there’s a bigger picture there.
Okay? You know what the problem is, Curtis, is that
you got caught up in it.

HILLIARD: Yeah, I did. I was there. I’m going to
just say that, I was there. But before I say anything
else, I mean, I already talked to you before we go to
court.

After clarifying that Hilliard had admitted being present at the

crime scene, but that he wanted to consult with an attorney,

Detective White ended the interview.

4
 In his motion to suppress in the circuit court, Hilliard

argued that he had requested an attorney on three separate

occasions, and that the detectives should have ceased

questioning him following his first request. After viewing a

videotape recording of the police interview, the circuit court

denied Hilliard’s motion, concluding that Hilliard did not make

an unequivocal request for counsel. The circuit court also held

that Hilliard’s admission that he was present at the crime scene

was a volunteered statement, rather than a response to a

question posed by the detectives.

The Court of Appeals, en banc, reversed the circuit court’s

judgment, holding that Hilliard’s third alleged request for

counsel was unequivocal. Hilliard, 43 Va. App. at 673, 601

S.E.2d at 659. The Court reviewed the videotape of Hilliard’s

interrogation and concluded that although his first two

statements “did not express a clear and unequivocal desire for

counsel,” his third and final request did, and the police

immediately should have ceased the interrogation. Id. at 671,

601 S.E.2d at 658. The Court further held that Hilliard’s

incriminating statement, that he was present at the crime scene,

was the result of express questioning by the detectives after he

had invoked his right to counsel. Id. at 675, 601 S.E.2d at

660.

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 On appeal to this Court, the Commonwealth argues that the

Court of Appeals applied an incorrect standard of review and

improperly considered de novo certain historical facts and

subjective aspects of the case. According to the Commonwealth,

the Court of Appeals erroneously conducted a “factual” review of

the videotape instead of relying on the circuit court’s

conclusions drawn from the videotape, which were not plainly

wrong. The Commonwealth also asserts that the Court of Appeals

erred in considering whether the detectives subjectively

understood Hilliard’s comments as invoking his right to counsel.

With regard to the merits of the circuit court’s holding,

the Commonwealth argues that the Court of Appeals erred in

concluding that Hilliard ultimately invoked his right to counsel

during the police interrogation. The Commonwealth asserts that

Hilliard’s statements were an expression of his “concern about

the wisdom of continuing to speak,” but did not constitute a

clear invocation of his right to an attorney. The Commonwealth

also contends that the Court of Appeals erroneously considered

Hilliard’s statement, “I already have a lawyer,” as a factor in

determining whether he had invoked his right to counsel.

In response, Hilliard argues that the Court of Appeals

properly reviewed the videotaped interview as part of its duty

to conduct a de novo review of the circuit court’s legal

conclusion that Hilliard’s statements were not sufficient to

6
invoke his right to counsel. He further asserts that the Court

of Appeals did not commit reversible error in referring to the

detectives’ subjective beliefs, because the Court did not decide

the case based on those beliefs but correctly applied an

objective test.

Addressing the merits of the circuit court’s holding,

Hilliard argues that the Court of Appeals correctly concluded

that his third and final request was a clear invocation of his

right to counsel. However, asserting cross-error, Hilliard

contends that the Court erred in refusing to hold that his two

prior statements were similarly unequivocal. He asserts that in

each instance, his comments objectively demonstrated that he was

invoking his right to counsel, and that the detectives should

have ceased questioning him after his first reference to the

presence of an attorney.

In resolving these issues, we apply established

constitutional principles. The right of a criminal suspect to

have an attorney present during custodial interrogation was

first articulated by the Supreme Court in Miranda v. Arizona,

384 U.S. 436, 469-73 (1966). The Court held that before

interrogating a suspect who is in police custody, law

enforcement officers must inform the suspect of certain rights,

including the right to the presence and assistance of counsel.

Id. at 471. If the suspect waives his Miranda rights, the

7
police are free to begin questioning him; however, if the

suspect changes his mind during the interrogation and requests

the assistance of counsel, the interrogation must cease until an

attorney has been made available to the suspect or the suspect

reinitiates the interrogation. Davis v. United States, 512 U.S.

452, 458 (1994); Edwards v. Arizona, 451 U.S. 477, 484-85

(1981).

The question whether a suspect actually invoked his right

to counsel involves an objective inquiry. Id. at 459;

Commonwealth v. Redmond, 264 Va. 321, 328, 568 S.E.2d 695, 699

(2002); see Connecticut v. Barrett, 479 U.S. 523, 529 (1987).

To invoke this right, a suspect must state his desire to have

counsel present with sufficient clarity that a reasonable police

officer under the circumstances would understand the statement

to be a request for counsel. Davis, 512 U.S. at 459; Redmond,

264 Va. at 328-29, 568 S.E.2d at 699; Eaton v. Commonwealth, 240

Va. 236, 253-54, 397 S.E.2d 385, 395-96 (1990). If, however, a

suspect’s reference to an attorney is either ambiguous or

equivocal, such that a reasonable officer under the

circumstances would only have understood that the suspect might

be invoking his right to counsel, the officer is not required to

stop questioning the suspect. Davis, 512 U.S. at 459, 461;

Redmond, 264 Va. at 328-29, 568 S.E.2d at 699; Eaton, 240 Va. at

253-54, 397 S.E.2d at 395-96.

8
 The issue whether a suspect invoked his right to counsel

presents a mixed question of law and fact, which requires the

application of these constitutional standards to the facts of a

given case. Redmond, 264 Va. at 326, 568 S.E.2d at 697. When

an appellate court conducts its independent review of a circuit

court’s determination of this issue, the appellate court may

review the circuit court’s findings of historical fact only for

clear error and must give deference to the inferences that may

be drawn from those factual findings. Id. at 327, 568 S.E.2d at

698; see Ornelas v. United States, 517 U.S. 690, 699 (1996).

Here, the circuit court did not make any factual findings

regarding what Hilliard actually said because the parties did

not dispute the content of his statements to the police.

Therefore, appellate consideration of the circuit court’s denial

of Hilliard’s motion to suppress is restricted to a de novo

review of the legal issue whether Hilliard’s words, taken in

context, were sufficient to invoke his right to counsel. See

Redmond, 264 Va. at 327, 568 S.E.2d at 698; United States v.

Younger, 398 F.3d 1179, 1185 (9th Cir. 2005); United States v.

Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993).

Initially, we agree with the Commonwealth’s contention that

the Court of Appeals erred in referring to the detectives’

subjective understanding whether Hilliard invoked his right to

counsel. As we emphasized in Redmond, the determination whether

9
an accused actually invoked his right to counsel is a purely

objective inquiry. Id. at 328, 264 Va. at 699; see Davis, 512

U.S. at 459. Thus, the detectives’ subjective understanding is

irrelevant to this inquiry and provides no support for the Court

of Appeals’ holding. However, we conclude that the Court of

Appeals’ error in this regard was harmless because the language

at issue was dictum stated by the Court after it had completed

the objective test mandated by Davis.

We next consider the Commonwealth’s argument that the Court

of Appeals erroneously conducted a de novo review of the

historical facts of the case. Under the standard of review

stated above, the Court of Appeals was required to uphold the

circuit court’s determination unless the historical facts, as a

matter of law, did not support the circuit court’s conclusion

that Hilliard failed to invoke his right to counsel.

The Court of Appeals, in determining this issue of law,

necessarily had to review the words Hilliard spoke to determine

whether they were legally sufficient to invoke his right to

counsel. That review of the words spoken by Hilliard also

required consideration of the context in which his statements

were made.

Likewise, appellate review of the legal sufficiency of

words spoken by a defendant may include review of the tone of a

defendant’s voice, any voice inflections, and the defendant’s

10
demeanor, if those factors are alleged to have affected the

meaning of the words spoken. However, the appellate court’s

review of such factors is limited to the issue whether the

defendant’s words, as spoken, were legally sufficient to invoke

his right to counsel. The appellate court is not permitted to

use such factors to conduct its own fact finding and, to the

extent that the appellate court does so, it commits error.

Here, the Court of Appeals cited, among other things, the

tone of Hilliard’s voice, his voice inflections, and his

demeanor in concluding that the totality of the circumstances

“support[s] the reasonable conclusion that Hilliard clearly

requested the presence of counsel . . . .” Hilliard, 43 Va.

App. at 673, 601 S.E.2d at 659. This conclusion exceeded the

scope of the Court’s duty to confine its review to the issue

whether Hilliard’s words, as spoken, were legally sufficient to

invoke his right to counsel in light of the circuit court’s

finding that they were not. However, we conclude that this

error was harmless because the Court ultimately and properly

considered the legal sufficiency of Hilliard’s words, as

demonstrated by the Court’s holding that “Hilliard’s [third set

of] statements could only be understood by reasonable officers,

under the circumstances at issue in this case, as an unambiguous

assertion of his right to counsel.” Id. at 672, 601 S.E.2d at

11
658. Therefore, we consider the Court of Appeals’ holding by

examining Hilliard’s three alleged requests for an attorney.

We conclude that Hilliard’s first and second alleged

requests do not qualify as unequivocal assertions of his right

to counsel. In the first instance, as stated above, Hilliard

asked, “Can I have someone else present too, I mean just for my

safety, like a lawyer like y’all just said?” Detective White

replied, “That’s up to you,” and told Hilliard that they could

not continue their interview unless he signed the waiver form.

Hilliard signed the form and continued to speak to the

detectives without a lawyer being present.

This first exchange, which occurred immediately after

Hilliard was advised of his Miranda rights, was merely an

inquiry requesting a clarification or affirmation of the rights

that had just been explained to him. See, e.g., Eaton, 240 Va.

at 253-54, 397 S.E.2d at 395-96; Poyner v. Commonwealth, 229 Va.

401, 410, 329 S.E.2d 815, 823 (1985). Hilliard continued to

speak with the detectives instead of requesting the presence of

counsel after being told that the decision was “up to [him].”

Thus, we hold that Hilliard’s first reference to the presence of

an attorney was not an unambiguous request for counsel, and the

detectives were not required to stop questioning him under the

Edwards rule. See Davis, 512 U.S. at 461-62; Edwards, 451 U.S.

at 484-85; Redmond, 264 Va. at 330, 568 S.E.2d at 700.

12
 Hilliard made his second alleged request a few minutes

later in the interview. He stated 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 . . . .”

We examine this second statement with reference to our

holding in Midkiff v. Commonwealth, 250 Va. 262, 462 S.E.2d 112

(1995). There, after having been advised of his Miranda rights,

the defendant stated, “I’ll be honest with you, I’m scared to

say anything without talking to a lawyer.” Id. at 265, 462

S.E.2d at 114. We concluded that although the defendant’s

statement expressed reservation about the wisdom of continuing

the interrogation without the presence of counsel, the statement

did not “clearly and unambiguously communicate a desire to

invoke his right to counsel.” Id. at 267, 462 S.E.2d at 115.

We conclude that Hilliard’s statement was even more

ambiguous than the statement in Midkiff because the defendant in

that case mentioned “talking to a lawyer,” while Hilliard merely

stated that he would “like to have somebody else in here” to

avoid making statements that might implicate him. Thus, guided

by our holding in Midkiff, we conclude that Hilliard’s second

alleged request for an attorney was equivocal because it failed

to communicate more than an uncertainty about the wisdom of

continuing the interrogation without consulting another person.

13
See id.; Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d

124, 132 (1994).

Hilliard’s third alleged request for an attorney occurred

about one hour later in the interrogation. As recounted above,

Hilliard asked, “Can I get a lawyer in here?” Detective White

responded, “Do you want to do that?” Hilliard then stated, “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.”

We consider this exchange in the context of the

circumstances and the prior statements made by Hilliard. When

viewed as a whole, the import of Hilliard’s statements is clear.

We hold that as a matter of law, Hilliard’s third alleged

request for an attorney, in context, was an unequivocal request

for counsel stated with sufficient clarity that a reasonable

police officer under the circumstances would have understood the

statements to be a request for counsel.∗ Therefore, at that

point, the detectives were required to cease interrogating

Hilliard. See Davis, 512 U.S. at 458; Edwards, 451 U.S. at 484-

85; Redmond, 264 Va. at 328, 568 S.E.2d at 698. Accordingly, we

14
hold that the Court of Appeals correctly concluded that the

circuit court erred in denying Hilliard’s motion to suppress,

because Hilliard’s confession was obtained in violation of his

Fifth Amendment rights.

We also observe that the Commonwealth does not assign error

to the Court of Appeals’ determination that the circuit court

erred in concluding that Hilliard’s admission, “I was there,”

was a volunteered statement and, thus, was admissible

irrespective whether he had invoked his right to counsel. The

Court of Appeals held that Hilliard’s statement confessing his

presence at the scene of the crime was obtained as a result of

express questioning by the police detectives. Hilliard, 43 Va.

App. at 675, 601 S.E.2d at 660. In light of the Commonwealth’s

decision not to challenge this part of the Court of Appeals’

holding, we do not further address the issue.

Finally, we do not consider Hilliard’s assignment of cross-

error that the police violated his Sixth Amendment right to

counsel, because Hilliard failed to preserve this issue in the

circuit court. Although Hilliard made an unsubstantiated

reference to the Sixth Amendment in his written motion to

∗
Although Hilliard stated that he already had a lawyer, he
did not have counsel appointed or retained on the charges for
which he was being interviewed by the detectives. Thus, we do
not consider that statement as a request for the presence of a
particular attorney. However, as stated above, we consider that

15
suppress, he did not refer to that issue in his oral argument on

the motion but solely addressed his Fifth Amendment claims.

Thus, Hilliard did not ask the circuit court to rule on his

Sixth Amendment claim, and we will not consider it for the first

time on appeal. See Rule 5:25.

For these reasons, we will affirm the Court of Appeals’

judgment.

Affirmed.

JUSTICE AGEE, concurring in part and dissenting in part.

I join the majority in affirming that portion of the Court

of Appeals judgment that (1) Hilliard failed to properly

preserve his Sixth Amendment claim for appeal and (2) neither of

Hilliard's first two purported requests for an attorney

constituted a clear invocation of his right to counsel.

However, I write separately because I disagree that Hilliard's

third alleged request for an attorney "express[ed] an

unequivocal request for counsel."

The right to counsel established in Miranda v. Arizona, 384

U.S. 436, 469-73 (1966), is "a . . . procedural safeguard

[meant] . . . to insure that the right against self-

incrimination was protected." Davis v. United States, 512 U.S.

452, 457 (1994) (citing Michigan v. Tucker, 417 U.S. 433, 443-

statement together with Hilliard’s other statements in holding
that he unequivocally invoked his right to counsel.

16
444 (1974)). In Edwards v. Arizona, 451 U.S. 477 (1981), the

United States Supreme Court established an additional protection

for suspects, holding that if, in the course of interrogation, a

suspect affirmatively invokes his right to counsel, "questioning

must cease." Davis, 512 U.S. at 461. However, "after a knowing

and voluntary waiver of the Miranda rights, law enforcement

officers may continue questioning until and unless the suspect

clearly requests an attorney." Id.

In Davis, the United States Supreme Court addressed on the

merits, the issue of "ambiguous or equivocal references to

counsel during custodial interrogation." Id. at 456. The Court

noted that a suspect has the burden to "unambiguously request

counsel" because "the primary protection afforded suspects

subject to custodial interrogation is the Miranda warnings

themselves." Id. at 459-60. Thus, a law enforcement officer

conducting a custodial interrogation meets his obligation under

Miranda when he advises a suspect of his right to counsel.

[I]f a suspect makes a reference to an attorney that
is ambiguous or equivocal in that a reasonable officer
in light of the circumstances would have understood
only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation
of questioning.

Id. at 459. Because the officer's responsibility to discontinue

interrogation is triggered by the suspect's assertion of his

17
Miranda right, that assertion must be "unambiguous." Id. at

459. In short,

the police must respect a suspect's wishes regarding
his right to have an attorney present during custodial
interrogation, [b]ut when the officers conducting the
questioning reasonably do not know whether or not the
suspect wants a lawyer, a rule requiring the immediate
cessation of questioning would transform the Miranda
safeguards into wholly irrational obstacles to
legitimate police investigative activity.

Id. at 460 (citation and internal quotation marks omitted). The

Davis Court noted that, "if we were to require questioning to

cease if a suspect makes a statement that might be a request for

an attorney, . . . [p]olice officers would be forced to make

difficult judgment calls about whether the suspect in fact wants

a lawyer[,] . . . with the threat of suppression if they guess

wrong." Id. at 461.

We applied Davis in Commonwealth v. Redmond, 264 Va. 321,

324, 328-30, 568 S.E.2d 695, 696, 698-99 (2002), where the

defendant moved to suppress a confession he made during a

custodial interrogation claiming that he had invoked his right

to counsel. After the defendant was advised of his Miranda

rights, a police detective began interrogation. At some point,

the defendant asked, "Can I speak to my lawyer? I can't even

talk to lawyer before I make any kinds of comments or anything?"

Id. at 325, 568 S.E.2d at 697. The detective responded,

You can do anything you like . . . . You have the
freedom to do anything you want. . . . to go to sleep

18
 right now if you want to do that. . . . You have the
freedom to sit here and talk to me. . . . The point is
. . . this is your opportunity [to give your side of
the story]; this is your time. There ain't tomorrow,
there ain't later. Okay? There's not later. There
is no later. And I'm trying, I'm trying to give you
. . . the opportunity to help yourself out a little
bit.

Id. at 325-26, 568 S.E.2d at 697. The defendant never

reasserted his request. Citing the holding of Davis, this Court

determined that the defendant's statements in Redmond "were not

a clear and unambiguous assertion of his right to counsel." Id.

at 330, 568 S.E.2d at 700.

We noted in Redmond the Supreme Court's refusal in Davis

"to adopt a rule requiring officers to ask clarifying questions"

to determine if a suspect's statement is a request for counsel.

Id. The Davis Court explained, however, that "[c]larifying

questions help protect the rights of the suspect by ensuring

that he gets an attorney if he wants one." Davis, 512 U.S. at

461.

In this case, the interrogating officer did follow up

Hilliard's question, "Can I get a lawyer in here?" with a

clarifying question: "Do you want to do that?" Rather than

responding affirmatively, Hilliard continued,

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. And
I'll tell you everything that I know. This is my
word.

19
The officer gave Hilliard the opportunity to clearly request an

attorney, but Hilliard did not.

In my view, the majority's determination that Hilliard

unequivocally requested counsel is inconsistent with this

Court's holding in Redmond and at odds with the guidance from

the United States Supreme Court in Davis. Taken in full

context, Hilliard's question "Can I get a lawyer in here?" is no

more an "unambiguous or unequivocal request for counsel" than

Redmond's "Can I speak with my lawyer?" If anything, the

defendant's comments in Redmond were a stronger indication of a

possible request for counsel than Hilliard's general inquiry in

this case.

Redmond, arguably, was asking for "my lawyer" while

Hilliard was generically asking whether he had the right to

speak to "a lawyer," a right previously and immediately

thereafter explained to him. Further, the detective

interrogating Redmond steered him away from his initial question

and emphasized the importance of continuing with the

interrogation, while the officer questioning Hilliard gave him

an immediate opportunity to make his request clear. The

suppression of Hilliard's admission does not comport with our

decision to affirm the admissibility of Redmond's confession.

Judge Clements' dissenting opinion in the Court of Appeals

succinctly states the deficiency in concluding that Hilliard's

20
third alleged request for an attorney was unequivocal under

Davis or Redmond.

[The third alleged request] is no less equivocal than
his first two purported requests for counsel or the
defendant's question in Redmond. . . . At best, a[n]
. . . officer . . . would have understood only that
Hilliard might be invoking the right to counsel.
Likewise, Hilliard's statements and actions in
response to the detective's follow-up clarifying
question. . . were equivocal. Instead of directly
answering the detective's question in the affirmative,
Hilliard again merely expressed his reservation about
the wisdom of continuing the interrogation without
consulting a lawyer and continued talking to the
detectives in a manner that did not clearly and
unambiguously communicate a desire to invoke his right
to counsel. . . . [B]ecause the likelihood that a
suspect would wish counsel to be present is not the
test for applicability of the rule requiring cessation
of the interrogation if the suspect requests counsel,
Hilliard's reference to a lawyer, like those of the
defendants in Davis and Redmond, fell short of
requesting counsel in a clear and unambiguous manner.

Hilliard v. Commonwealth, 43 Va. App. 659, 686-87, 601 S.E.2d

652, 665-66 (2004) (Clements, J., concurring and dissenting).

The Davis court clearly stated the basis for the rule that

a request for counsel be unambiguous and unequivocal because it

provides

a bright line that can be applied by officers in the
real world of investigation and interrogation without
unduly hampering the gathering of information. But if
we were to require questioning to cease if a suspect
makes a statement that might be a request for an
attorney, this clarity and ease of application would
be lost.

Davis, 512 U.S. at 461.

21
 By permitting Hilliard's equivocal request to stand as the

basis for sustaining his motion to suppress, I believe the

majority's opinion will obscure a "bright line" for future cases

and foster the ambiguity Davis sought to constrain.

Accordingly, I respectfully dissent and would reverse that part

of the judgment of the Court of Appeals holding that the trial

court erred in denying Hilliard's motion to suppress.

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