Stevens v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley,
Petty, Beales, Powell and Alston
Argued at Richmond, Virginia

ROGER LEE STEVENS, S/K/A
ROGER LEE STEPHENS
OPINION BY
v. Record No. 0266-09-3 JUDGE WILLIAM G. PETTY
FEBRUARY 1, 2011
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge

Larry Gott for appellant.

Josephine F. Whalen, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Roger Lee Stevens appeals from his convictions for robbery, conspiracy to commit

robbery, malicious bodily injury, two counts of murder, and several counts of using a firearm in

the commission of various felonies. Before a panel of this Court, Stevens argued that the trial

court erroneously denied his motion to suppress incriminating statements he made to police

during a custodial interrogation after he requested counsel. Stevens contended that the police

should have ceased questioning him because he claims to have unambiguously and

unequivocally invoked his right to have counsel present during custodial interrogation as set

forth in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981).

In an unpublished opinion, a divided panel of this Court reversed Stevens’ convictions

and remanded for a new trial. See Stevens v. Commonwealth, No. 0266-09-3, 2010 Va. App.

LEXIS 244, at *18 (Va. Ct. App. June 22, 2010). We subsequently granted the
Commonwealth’s petition for rehearing en banc and stayed the panel decision. 1 On rehearing en

banc, we hold that Stevens’ statement was ambiguous because the circumstances leading up to

Stevens’ statement made it unclear whether Stevens 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 that the police were

permitted to ask Stevens limited questions solely for the purpose of clarifying the statement.

Accordingly, we hold that the police did not violate Stevens’ right to counsel under Miranda,

and, therefore, we affirm his convictions.

I. BACKGROUND

On July 22, 2008, the appellant, Roger Lee Stevens, was arrested for his involvement in a

deadly shooting that occurred during a drug transaction. After his arrest, Investigators Chaney

and Nicholson of the Pittsylvania County Sheriff’s Department questioned Stevens at a police

station in Chatham, Virginia. They began the interrogation by carefully reading Stevens his

Miranda rights. Stevens waived those rights 2 and answered the investigators’ questions for

approximately two hours. During this time, Stevens never asked for counsel. After this session

concluded, Stevens was transferred to an unidentified jail; he did not remain in Chatham because

of a need to keep him separate from another person in custody at that location.

Apparently, the magistrate before whom Stevens had appeared during the night had

erroneously ordered Stevens to be transported to the juvenile and domestic relations district court

1
By granting the petition for rehearing en banc, we vacated the previous panel decision.
Logan v. Commonwealth, 47 Va. App. 168, 170, 622 S.E.2d 771, 772 (2005).
2
Although Stevens would not sign a waiver form, Stevens verbally agreed to waive each
of his Miranda rights to the investigators. The parties do not dispute that Stevens validly waived
his Miranda rights during this first interrogation.

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for his original appearance and appointment of counsel. 3 Based on the magistrate’s order,

authorities transferred Stevens to a holding cell at that court even though the proper court for this

advisement was the general district court, which was not sitting that day. Because of this

mix-up, the advisement was continued until the next day that the general district court was to sit.

When he arrived for work that morning, Investigator Chaney learned that Stevens wanted

to talk with him again. Accordingly, Chaney went to the holding cell and engaged in a “basic

conversation” with Stevens. Stevens asked Chaney if he could leave the cell to see his child at

home. Chaney explained that Stevens could not leave because he was in police custody for

several serious crimes. He further explained that he would come visit Stevens later to talk with

him some more.

Later that day, Chaney and Nicholson had Stevens returned to the police department so

they could speak with him further. Their conversation began as follows 4 :

Chaney: You wanna, you want to talk to us some more?

Stevens: Ya’ll want to talk to me or something?

Chaney: Yeah. You want to talk to us?

Stevens: Ya’ll want to talk to me? I ain’t doing nothing [inaudible] sitting.

3
The parties have, at various times, referred to this proceeding as an advisement or
arraignment. Clearly, the proceeding was Stevens’ initial appearance before a court not of record
for purposes of advising him of his right to bail and right to counsel and for appointment of
counsel if appropriate. Code §§ 19.2-158, 19.2-159. For purposes of this opinion, we will refer
to this proceeding as an advisement.
4
It is important to note that there is no transcript of this conversation. Rather, a video
recording was introduced at trial. Because the trial court was able to view the conversation, it
could consider not just the words spoken, but also the inflection, body language, and tone of
voice of Stevens, Chaney, and Nicholson. Having watched the video, we note that, although the
written words suggest a deliberate and sequential conversation, much of the quoted dialogue was
a fast-paced exchange. The entire time lapse from the beginning of Stevens’ explicit request for
a lawyer until the end of his comment “that’s what I thought they brought me up here for today”
was approximately four seconds.
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Chaney: Well reason we ask is cause we brought you back over that, this
morning you asked for me, and we brought you back over here the reason
I’m asking you is because your rights still apply. You still understand your
rights?

Stevens: I have the right to remain silent.

Chaney: Everything that I read you last night, do you still understand your
rights?

Stevens: Mm-hmm.

Chaney: You can have a lawyer present if you want one.

Stevens: I want, that’s what I need. I want to know what’s, you know what
I’m saying.

Chaney: You can stop answering at any time.

Stevens: That’s what I want, a lawyer, man.

Chaney: You do want a lawyer.

Stevens: I mean, that’s what I thought they brought me up here for today.

Nicholson: Well they gonna appoint you a lawyer. I mean you gonna get a
lawyer.

Chaney: The question is do you want a lawyer before you talk to us again
or are you willing to talk to us?

Stevens: I mean I’ll listen to ya but you already said if I could stop if I
wanted.

Chaney: Stop answering at any time you want to.

Stevens: I’ll listen to what you got to say. If you want—if I say
something—if I feel I don’t want to say no more y’all done told me I can
stop.

Nicholson: Yes sir.

Chaney: Stop anytime you want.
Nicholson: No problem at all with that.
Chaney: All you got to say is I don’t want to say—I don’t want to talk to
you no more. That’s all you gotta say.

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 After this exchange, Stevens made incriminating statements to Chaney and Nicholson,

which he later sought to suppress. In support of his motion to suppress, Stevens argued that he

unambiguously and unequivocally invoked his Fifth Amendment right to have counsel present

during questioning, and thus all further questioning should have ended immediately. In contrast,

the Commonwealth argued that Investigators Chaney and Nicholson reasonably construed

Stevens’ statement as ambiguous in light of the full circumstances surrounding Stevens’ aborted

advisement and subsequent detention. Thus, the Commonwealth contended that the investigators

were permitted to clarify the ambiguity. The trial court denied Stevens’ motion and admitted the

incriminating statements made to police. Stevens was subsequently convicted of numerous

crimes. This appeal followed.

II. ANALYSIS

As he did before the trial court, Stevens argues on appeal that he made an unambiguous

and unequivocal request to have counsel present during custodial interrogation. Accordingly, he

contends that police questioning should have immediately ceased after he said, “That’s what I

want, a lawyer, man.” 5 We disagree.

We view the facts “in the light most favorable to the Commonwealth,” the prevailing

party below, Carter v. Commonwealth, 280 Va. 100, 104, 694 S.E.2d 590, 593 (2010), and grant

it “all inferences reasonably deducible therefrom,” Commonwealth v. Jenkins, 255 Va. 516, 521,

499 S.E.2d 263, 265 (1998). However, whether a defendant invoked his right to have counsel

present during custodial interrogation presents a mixed question of law and fact. Commonwealth

v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005). Hence, “‘the determination of what [the

defendant] actually said is a question of fact we review only for clear error,’” but “‘[w]hether

5
Stevens’ position, as crystallized during oral argument, was that his subsequent
statements became inadmissible the moment Investigator Chaney said, “You do want a lawyer.”

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those words are sufficient to invoke a right to counsel is a legal determination that we review de

novo.’” Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002) (quoting

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

The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. To prevent such

compulsion, the United States Supreme Court has “established a number of prophylactic rights

designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including

the right to have counsel present” during custodial interrogation. McNeil v. Wisconsin, 501 U.S.

171, 176 (1991) (quoting Miranda, 384 U.S. at 467); see also Edwards, 451 U.S. at 485-86 (“The

Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial

interrogation.”). Thus, as the Supreme Court has recognized, “to have counsel present during a

custodial interrogation is an axiom of American law.” Zektaw v. Commonwealth, 278 Va. 127,

135, 677 S.E.2d 49, 53 (2009) (emphasis added).

Once an accused requests to have counsel present during custodial interrogation, the

accused “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.” Edwards, 451 U.S. at 484-85. Thus, the police “‘may not

reinterrogate an accused in custody if he has clearly asserted [this] right to counsel.’” Arizona v.

Roberson, 486 U.S. 675, 680 (1988) (emphasis added) (quoting Edwards, 451 U.S. at 485).

However, nothing in Edwards prevents police from questioning a suspect who does “not wish to

have a lawyer present” during questioning. Davis v. United States, 512 U.S. 452, 460 (1994)

(emphasis added).

It is not always clear, however, whether a suspect has invoked his right to have counsel

present during custodial interrogation, and thus has asked for “the particular sort of lawyerly

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assistance that is the subject of Miranda,” McNeil, 501 U.S. at 178, or whether he has asked for

counsel for some other purpose. For instance, a suspect may seek the advice of counsel

regarding preliminary police interaction, but not for the purpose of receiving counsel during

custodial interrogation. See United States v. Lagrone, 43 F.3d 332, 333, 337 (7th Cir. 1994)

(holding that a suspect’s request for counsel to advise him on whether he should consent to a

police search, pursuant to the Indiana Constitution, did not invoke his Miranda right to counsel

during a subsequent custodial interrogation). In fact, a suspect may even request the presence of

counsel during custodial interrogation on a limited basis that still permits some police

questioning. See Connecticut v. Barrett, 479 U.S. 523, 525-26 (1987) (holding that a suspect

may invoke his Miranda right to counsel only with respect to written statements, while still

permitting verbal statements without qualification). Further, a suspect may also validly choose

to forego the presence of counsel during custodial interrogation and instead choose simply to

have an attorney for formal proceedings before a court, United States v. Gouveia, 467 U.S. 180,

190 (1984), or he may even choose to proceed without an attorney at all, Faretta v. California,

422 U.S. 806, 813-14 (1975). Given the range of options available to an accused, it follows that

“‘preserving the integrity of the accused’s choice to communicate with police only through

counsel is the essence’” of the Court’s decisions affording the accused with a right to counsel in

those circumstances. Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (emphasis added)

(quoting Patterson v. Illinois, 487 U.S. 285, 291 (1988)); see also Barrett, 479 U.S. at 528 (“The

fundamental purpose of the Court’s decision in Miranda was ‘to assure that the individual’s right

to choose between speech and silence remains unfettered throughout the interrogation process.’”

(emphasis in original) (quoting Miranda, 384 U.S. at 469)). 6

6
While we are well aware that the right to counsel and the right to remain silent during
custodial interrogation are two distinct rights under Miranda, we also recognize that the legal
issues surrounding those two rights in particular are very similar, if not the same. See Berghuis
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 Finally, while we recognize that “a defendant who does not want to speak to the police

without counsel present need only say as much when he is first approached and given the

Miranda warnings,” Montejo v. Louisiana, 129 S. Ct. 2079, 2090 (2009), where we are called

upon to determine whether a reasonable police officer would have considered such a request

ambiguous or equivocal, we must be mindful that

[s]uppression of evidence, however, has always been our last
resort, not our first impulse. The exclusionary rule generates
“substantial social costs,” which sometimes include setting the
guilty free and the dangerous at large. [The United States Supreme
Court has] therefore been “cautio[us] against expanding” it, and
“[has] repeatedly emphasized that the rule’s ‘costly toll’ upon
truth-seeking and law enforcement objectives presents a high
obstacle for those urging [its] application.” [The Court has]
rejected “[i]ndiscriminate application” of the rule, and [has] held it
to be applicable only “where its remedial objectives are thought
most efficaciously served,”—that is, “where its deterrence benefits
outweigh its ‘substantial social costs.’”

Hudson v. Michigan, 547 U.S. 586, 591 (2006) (some alterations in original) (citations omitted).

In light of these important considerations, we are now faced with how to evaluate a

suspect’s statement to police regarding his desire for counsel. Obviously, to invoke the Miranda

right to counsel “‘requires, at a minimum, some statement that can reasonably be construed to be

an expression of a desire for the assistance of an attorney.’” Davis, 512 U.S. at 459 (quoting

McNeil, 501 U.S. at 178). But, if the statement is “ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only that the suspect [making the

statement] might be” asking for the presence of an attorney during custodial interrogation, the

officer may ask questions to clarify the statement. Id. (emphasis in original) (citing McNeil, 501

U.S. at 178; Edwards, 451 U.S. at 485). In fact, “when a suspect makes an ambiguous or

v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (explaining that “there is no principled reason to
adopt different standards for determining when an accused has invoked the Miranda right to
remain silent and the Miranda right to counsel”).
-8-
equivocal statement, it will often be good police practice for the interviewing officers to clarify

whether or not he actually wants an attorney” present. Id. at 461.

The Supreme Court has examined on many occasions whether a particular statement

made by a suspect unambiguously and unequivocally invoked the suspect’s right to have counsel

present during custodial interrogation. Oftentimes, it has viewed a defendant’s statement as

seeking mere clarification of his Miranda right to counsel, and not as a clear invocation of that

right. See, e.g., Hilliard, 270 Va. at 51, 613 S.E.2d at 585 (holding that the statement, “Can I

have someone else present too, I mean just for my safety, like a lawyer like y’all just said?,” was

not a clear assertion of the defendant’s Miranda right to counsel); Redmond, 264 Va. at 330, 568

S.E.2d at 700 (holding that the statement, “Can I speak to my lawyer? I can’t even talk to [a]

lawyer before I make any kinds of comments or anything?,” was not a clear request for the

presence of counsel during custodial interrogation); Midkiff v. Commonwealth, 250 Va. 262,

265-67, 462 S.E.2d 112, 114-15 (1995) (holding that “[t]he statement, ‘I’m scared to say

anything without talking to a lawyer,’ . . . does not clearly and unambiguously communicate a

desire to invoke” a Fifth Amendment right to counsel). Yet other times, the Court has viewed

certain statements as clear requests for counsel during custodial interrogation. For instance, in

Zektaw, the Supreme Court held that the statement, “I’d really like to talk to a lawyer because

this—oh my God, oh my Jesus, why?,” was an unambiguous and unequivocal invocation of the

defendant’s right to counsel under Miranda. Zektaw, 278 Va. at 131-32, 138-39, 677 S.E.2d at

51, 55. The Court similarly held in Commonwealth v. Ferguson, 278 Va. 118, 121, 126, 677

S.E.2d 45, 46, 49 (2009), that the statement, “Nah, I want a lawyer, you know what I’m

saying?,” was a clear, unambiguous, and unequivocal request for counsel during custodial

interrogation.

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 Like the statements in Zektaw and Ferguson, Stevens’ 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. In Zektaw and Ferguson, the Supreme Court was presented only with statements made

under traditional circumstances—that is, statements made by a defendant during police

questioning with little or no other relevant circumstances leading up to the questioning itself.

See Zektaw, 278 Va. at 131-32, 677 S.E.2d at 51; Ferguson, 278 Va. at 121-22, 677 S.E.2d at

46-47.

Accordingly, neither of those cases dealt with atypical circumstances leading up to a

defendant’s request for counsel—circumstances that might have suggested the defendant was not

requesting to have counsel present during police questioning, but rather, that suggested the

defendant was seeking counsel for some other purpose. Such circumstances could render a

suspect’s statement ambiguous, even if the statement’s words are unequivocal. Because we are

now presented with this issue, we must evaluate whether the “circumstances leading up to the

request for counsel would render it ambiguous,” Smith v. Illinois, 469 U.S. 91, 98 (1984), such

that the suspect failed to “‘articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the statement to be a request for

an attorney,’” Redmond, 264 Va. at 328-29, 568 S.E.2d at 699 (emphasis added) (quoting Davis,

512 U.S. at 459). 7

7
As the Kansas Supreme Court has held, “The timing as well as the content and context
of a reference to counsel may help determine whether there has been an unambiguous assertion
of the right to have the assistance of an attorney in dealing with a custodial interrogation by the
police.” State v. Appleby, 221 P.3d 525, 548 (Kan. 2009).

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 When we so evaluate the specific circumstances of this case, we conclude that

Investigators Chaney and Nicholson, as police officers familiar with those circumstances, could

reasonably have considered Stevens’ request to be ambiguous—that it was just as likely Stevens

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. Stevens had

been arrested and interrogated by Nicholson and Chaney the day before he gave his statements to

them. Before the first interrogation began, Nicholson and Chaney advised Stevens of his

Miranda rights, and he waived those rights. During that first interrogation, Stevens never

requested to speak to an attorney, and thus he never expressed a desire to have an attorney

present during the first interrogation. Therefore, it was reasonable for the investigators to infer

that they had built a rapport with Stevens and that he was willing to speak with them without an

attorney present.

Thereafter, Stevens was transferred to an unknown jail, but the next day, he found

himself back in a holding cell in Chatham, near Chaney and Nicholson’s police station. Chaney

and Nicholson did not instigate their second meeting with Stevens; rather, Stevens specifically

asked to speak with Chaney. 8 Stevens expressed an interest in being released so he could see his

young son. Chaney later had Stevens brought over to the police station to talk with him and

Investigator Nicholson. At that time, both Chaney and Nicholson understood that Stevens had

8
The dissent strongly emphasizes that, in its view, Chaney and Nicholson initiated a
third, distinct meeting with Stevens. However, when we examine the facts in the light most
favorable to the Commonwealth, we conclude that the material exchange arose from a
continuation of the second meeting that had been instigated by Stevens. Chaney explained this
when he said, “[T]his morning you asked for me, and we brought you back over here,” i.e., as a
result of Stevens’ request. Even if, however, we accepted the dissent’s characterization of the
meeting, the fact remains that Chaney and Nicholson went into the meeting knowing about the
aborted advisement. As we explain below, that aborted advisement serves as the backbone of the
unique circumstances that inserted ambiguity into Stevens’ statement.

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been transferred for advisement and that once Stevens made an appearance in court—whenever

that might be—the court would appoint him an attorney. 9

Thus, when Stevens said, “That’s what I want, a lawyer, man,” explaining “that’s what I

thought they brought me up here for today,” 10 the context in which the statement was made

interjected some ambiguity into the statement itself. There is surely nothing unreasonable about

the officer’s uncertainty as to whether Stevens wanted counsel present for custodial

9
At oral argument, Stevens argued that no evidence suggested that the investigators were
actually aware of the aborted advisement or that Stevens was expecting the imminent
appointment of counsel. However, because we must view the evidence in the light most
favorable to the Commonwealth and grant it all reasonable inferences from that evidence,
Jenkins, 255 Va. at 521, 499 S.E.2d at 265, we must presume that the investigators were aware
of these peculiar circumstances. When asked if he knew why Stevens had been returned to
Chatham, Investigator Chaney testified that he “figured he was, he was coming to be arraigned.”
He also testified that he was “pretty sure [he] had broached that subject [of whether Stevens had
been appointed a lawyer] but [he couldn’t] say for sure.” He further acknowledged that Stevens
did not, at that point, tell Chaney that he had been appointed a lawyer. For that second meeting,
the investigators met Stevens at a holding cell in the juvenile and domestic relations district
court, and therefore the trial court could reasonably infer that they understood that Stevens had
been brought to the wrong location. More notably, during the second meeting, Nicholson
explained that a lawyer would be appointed for Stevens, and then Chaney asked, “The question
is do you want a lawyer before you talk to us again or are you willing to talk to us?” Thus, by
their words and actions, the investigators clearly indicated that they understood the peculiar
circumstances before them when they approached Stevens for the second time.
10
Because of the trial court’s position as fact-finder, we must defer to its judgment
regarding the nature of the exchange and the “statement” to be evaluated as memorialized on
video. Given Stevens’ and the investigators’ mannerisms, along with the disjointed nature of the
colloquy, the trial court reasonably viewed Stevens’ statement as a whole—not merely
considering the first part, as Stevens asks us to do. Although Investigator Chaney interjected a
statement of surprise—one he characterized as a comment, not a question—by quickly
exclaiming, “You do want a lawyer,” that did not affect the unity of the statement made by
Stevens, nor was Chaney’s interjected statement of surprise impermissible interrogation. In fact,
not even “‘subtle compulsion’” amounts to impermissible interrogation, Rhode Island v. Innis,
446 U.S. 291, 303 (1980), which goes beyond the interjected statement of surprise here.
Further, we do not view Chaney’s single comment recognizing Stevens’ request for an
attorney as even approaching the improper “continued police questioning” presented by Smith,
469 U.S. at 91-93. There, “[t]he interrogation . . . bore a substantial similarity to the one
condemned in Edwards v. Arizona, where the accused after requesting counsel was told that ‘he
had’ to talk to his interrogators.” Id. at 99 n.8 (quoting Edwards, 451 U.S. at 479). As the Court
explained, “It was precisely such ‘[badgering]’ that the Edwards safeguard was designed to
prevent.” Id. (alteration in original) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983)).
- 12 -
interrogation, or whether he wanted counsel for some other purpose—specifically, to represent

him at trial. 11 Further, since Stevens had not previously requested the presence of counsel, and

since Stevens had instigated the second meeting, Chaney and Nicholson could have reasonably

wondered whether Stevens wanted a lawyer present before he talked to them, or whether he

wanted a lawyer to aid him with adversarial judicial proceedings. Therefore, under the facts of

this case, we hold that the investigators could have reasonably viewed Stevens’ statement as

ambiguous, and thus they were permitted to ask Stevens clarifying questions when he made that

objectively ambiguous statement. 12

We are mindful that the judicially crafted rule of Miranda and Edwards “is justified only

by reference to its prophylactic purpose.” Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010).

Its purpose is to preserve “‘the integrity of an accused’s choice to communicate with police only

through counsel.’” Texas v. Cobb, 532 U.S. 162, 175 (2001) (Kennedy, J., concurring) (quoting

Patterson v. Illinois, 487 U.S. 285, 291 (1988)); see also Shatzer, 130 S. Ct. at 1220 (describing

the preservation of the accused’s choice as “the fundamental purpose” of the Miranda-Edwards

rule). Thus, the rule does not bar “‘an accused from making an initial election as to whether he

11
Although we recognize that we view these facts under an objective standard, we note
that when Chaney was asked whether he perceived Stevens’ statement as a request for a lawyer
to help him with court proceedings and bond hearings, or a request to have a lawyer present for
questioning, Chaney responded, “I wasn’t sure. That’s why I was trying to clarify.”
12
The dissent observes that the statement occurred in the context of a custodial
interrogation, and thus it reasons that only an exploration of the immediate circumstances
surrounding that custodial interrogation is warranted. We agree with the dissent that the
exchange occurred in the context of a custodial interrogation. If we thought otherwise, we would
not need to analyze whether Stevens’ statement was ambiguous, since that question arises only
when a defendant could have conceivably requested the presence of counsel during custodial
interrogation. See Davis, 512 U.S. at 459. Accordingly, even in the context of custodial
interrogation, ambiguity in a suspect’s statement may arise. See id. To determine what
circumstances may make the statement ambiguous, we see no reason to restrict our examination
to only those circumstances that have happened mere seconds or minutes before. A reasonable
police officer could certainly look beyond the immediate circumstances to determine how to
react to a given situation and interpret a particular statement from a suspect.
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will face the State’s officers during questioning with the aid of counsel, or go it alone.’” Cobb,

532 U.S. at 175 (Kennedy, J., concurring) (emphasis in original) (quoting Patterson, 487 U.S. at

291). Rather, it permits the accused to make the choice that he believes is best; therefore, if the

accused elects to go it alone, we should not exclude his subsequent statements at trial. Id.; see

Davis, 512 U.S. at 459. 13

Since the police must respect and act upon a suspect’s choice, we will suppress a

statement made outside of an attorney’s presence “only if a reasonable officer should have been

certain that the suspect expressed” the unambiguous and unequivocal election of his right to

counsel during custodial interrogation. Cobb, 532 U.S. at 176 (Kennedy, J., concurring)

(emphasis added) (citing Davis, 512 U.S. at 459). As we have explained, a reasonable police

officer would not necessarily have had such certainty in this case.

As we have noted, when police officers are confronted with factual circumstances leading

up to “a [suspect’s] reference to counsel that [is] insufficiently clear to invoke the Edwards

prohibition to further questioning,” Davis, 512 U.S. at 454, “it will often be good police practice

for the interviewing officers to clarify whether or not [the suspect] actually wants an attorney”

present, id. at 461. Investigators Chaney and Nicholson followed this “good police practice”

when they explained to Stevens that a lawyer would be appointed to represent him when he

appeared in court, and then asked, “The question is do you want a lawyer before you talk to us

again or are you willing to talk to us?” They merely clarified his ambiguous statement, which

13
If police officers questioning a suspect “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.’” Davis, 512 U.S. at 459 (quoting Michigan v. Mosley, 423 U.S. 96, 102 (1975)). Such
a rule “would needlessly prevent the police from questioning a suspect in the absence of counsel
even if the suspect did not wish to have a lawyer present.” Id.
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was both the legally allowable and legally prudent response to that statement. Thus, the

investigators’ behavior was appropriate here.

III. CONCLUSION

For the foregoing reasons, we conclude that the full circumstances leading up to Stevens’

request for counsel rendered Stevens’ statement ambiguous. A reasonable police officer under

the circumstances could have reasonably wondered whether Stevens had invoked his right to

have counsel present during custodial interrogation, or whether he had invoked a right to counsel

for some other purpose. Thus, the police were permitted to clarify the request. Therefore, we

affirm.

Affirmed.

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Elder, J., with whom Felton, C.J., Frank and Alston, JJ., join, dissenting.

I agree generally with the majority’s recitation 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 Investigators

Chaney and Nicholson “merely clarified [appellant’s] ambiguous statement [concerning his

desire for a lawyer], which was both the legally allowable and legally prudent response to that

statement.” See supra at 14-15 (emphases added). Although it may have been prudent for the

detectives to continue questioning appellant if they hoped to elicit an incriminating confession

from an unrepresented defendant, I would hold their doing so was not, in fact, legally allowable.

Appellant’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 appellant’s Fifth Amendment right to have counsel

present during the custodial interrogation appellant was about to undergo. Accordingly, under

settled principles, the investigators were required to cease their interrogation of appellant

immediately, and the confession they elicited during the uncounseled interrogation that followed

violated appellant’s Fifth Amendment rights.

The right under the Fifth Amendment of the United States Constitution “to have counsel

present during a custodial interrogation is an axiom of American law expressed in Miranda v.

Arizona, 384 U.S. 436 (1966)[,] and its progeny.” Zektaw v. Commonwealth, 278 Va. 127, 135,

677 S.E.2d 49, 53 (2009). “[T]he United States Supreme Court [has] established that ‘[i]f the

individual states . . . he wants an attorney, the interrogation must cease until an attorney is

present,’” Commonwealth v. Ferguson, 278 Va. 118, 123, 677 S.E.2d 45, 48 (2009) (quoting

Miranda, 384 U.S. at 474), or until “the suspect reinitiates the interrogation,” Commonwealth v.

Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005) (citing Davis v. United States, 512 U.S.

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452, 458 (1994); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). See generally Michigan v.

Mosley, 423 U.S. 96, 104 (1975) (holding police should “scrupulously” honor a request for

counsel (emphasis added)).

Determining whether a suspect actually invoked his right to counsel under the Fifth

Amendment involves an objective inquiry. Davis, 512 U.S. at 458-59. 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. 14 Id. If 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. Id. at

459, 461. In the case of an ambiguous statement, an officer may ask questions “to clarify

whether [the suspect] actually wants an attorney.” Commonwealth v. Redmond, 264 Va. 321,

330, 568 S.E.2d 695, 700 (2002). However, where the request is clear, subsequent dialog is

inappropriate, and “an accused’s subsequent statements are not relevant to the question whether

he invoked his right to counsel. A statement either asserts or fails to assert an accused’s right to

counsel.” Id. at 327, 568 S.E.2d at 698 (citing Smith v. Illinois, 469 U.S. 91, 97-98 (1984) (per

14
Quoting a concurring opinion in a United States Supreme Court case, the majority
indicates suppression is appropriate “‘only if a reasonable officer should have been certain that
the suspect expressed’ the unambiguous and unequivocal election of his right to counsel during
custodial interrogation.” See supra at 14 (quoting “[Texas v.] Cobb, 532 U.S. [162,] 176
[(2001)] (Kennedy, J., concurring) (emphasis added) (citing Davis, 512 U.S. at 459)”). The case
upon which the concurring opinion of Justice Kennedy relies, however, requires only that the
suspect “must unambiguously request counsel” and provides that as long as he “articulate[s] his
desire to have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney,” he “need not
‘speak with the discrimination of an Oxford don.’” Davis, 512 U.S. at 459 (quoting id. at 476
(Souter, J., concurring in the judgment)). To the extent the majority’s requirement of proof that a
reasonable officer must be “certain” the suspect has invoked his right to counsel might be viewed
as adopting a higher standard of proof than “unambiguous[ness],” I would reject its “certain[ty]”
language.

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curiam)). Where the parties “[do] not dispute the content of [a defendant’s] statements to the

police[,] . . . appellate consideration of the circuit court’s denial of [the defendant’s] motion to

suppress is restricted to a de novo review of the legal issue of whether [the defendant’s] words,

taken in context, were sufficient to invoke his right to counsel.” Hilliard, 270 Va. at 50, 613

S.E.2d at 584.

The majority concedes appellant’s statement itself, “That’s what I want, a lawyer, man,”

was unequivocal and, thus, that it must examine the context in which appellant made that

statement. In determining whether the context of the statement resulted in ambiguity, the

majority opinion omits certain testimony of the investigators which is critical to determining

whether the trial court erred in concluding appellant’s statement was not an invocation of his

Fifth Amendment right to counsel.

As the majority opinion indicates, on the night of appellant’s arrest, the investigators

advised him of his rights pursuant to Miranda, and he waived those rights, including his right to

have counsel present. He then spoke with Investigators Chaney and Nicholson for two hours,

during which time he said nothing incriminating. This was his first meeting with the

investigators. The next morning, appellant asked to talk to Investigator Chaney again. The

majority opinion accurately reflects the two men had what was their second meeting at about

10:00 a.m. that morning and that appellant “instigate[d]” this meeting. When Investigator

Chaney went to see appellant in his holding cell near the district court courtroom, appellant

asked “to go home,” saying “[he] want[ed] to see [his] [infant] son,” and Investigator Chaney

told appellant, “[Y]ou can’t go home. You’re charged, you know, with shooting into an

occupied vehicle resulting in death.” Chaney testified that, after that exchange, “[they] just had

. . . basic conversation,” and Chaney said, “[W]ell, I’m going back downstairs . . . but I’ll bring

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you down later to the office and talk to you again.” Chaney did not testify appellant gave any

indication at that time that he wished to talk further with the investigators.

Several hours later, Investigator Chaney had appellant brought to the investigators’

office, where they conducted the videotaped interview. This was Investigator Chaney’s third

meeting with appellant. Investigator Chaney testified unequivocally that he and Investigator

Nicholson, not appellant, initiated this third meeting, saying we “had [appellant] brought up . . .

[because] we wanted to talk to him again.” At the beginning of the videotaped interview,

Investigator Chaney confirmed he and Nicholson initiated this third meeting, and Chaney then

expressly discussed appellant’s right to have counsel present during the impending

interrogation:

Inv. Chaney: You wanna, you want to talk to us some
more?

Appellant: Ya’ll want to talk to me or something?

Inv. Chaney: Yeah. You want to talk to us?

Appellant: Ya’ll want to talk to me. I ain’t doing nothing
[inaudible] sitting.

Inv. Chaney: Well reason we ask is ’cause we brought you
back over that, this morning you asked for me, and we brought you
back over here[,] the reason I’m asking you is because your rights
still apply. You still understand your rights?

Appellant: I have the right to remain silent.

Capt. Nicholson: Yeah.

Inv. Chaney: Everything that I read you last night, do you
still understand your rights?

Appellant: Mmm-hmm.

Inv. Chaney: You can have a lawyer present if you want
one.

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 Appellant: I want, that’s what I need. I want to know
what’s, you know what I’m saying?

Inv. Chaney: You can stop answering at any time.

Appellant: That’s what I want, a lawyer, man.

(Emphasis added).

I would hold an objective examination of appellant’s statement in the full context in

which it was made compels the conclusion, as a matter of law, that appellant unequivocally

invoked his right to counsel under the Fifth Amendment and that the officers violated that right

by failing immediately to cease questioning him. It is true that the evidence, viewed in the light

most favorable to the Commonwealth, established appellant had been brought to the courthouse

for arraignment and “appoint[ment] [of]” “an attorney . . . under his Sixth Amendment rights”

and that these things did not actually take place as scheduled that morning. Nevertheless, the

video-recorded exchange between appellant and the officers establishes that appellant asserted

his right to an attorney in the context of the impending custodial interrogation, initiated by the

investigators, and their review of his rights pursuant to Miranda. As quoted above, when

Investigator Chaney reminded appellant of his right to “have a lawyer present [for questioning] if

[he] want[ed] one,” appellant responded “[T]hat’s what I need.” When Investigator Chaney

proceeded to tell appellant that he “[could] stop answering at any time,” appellant again focused

on his right to have “a lawyer present,” saying “That’s what I want, a lawyer, man.”

As set out above, the United States and Virginia Supreme Courts have recognized, and

the majority opinion does not adequately acknowledge, that “[a] statement either asserts or fails

to assert an accused’s right to counsel” and “an accused’s subsequent statements are not relevant

to the question whether he invoked his right to counsel.” Redmond, 264 Va. at 327, 568 S.E.2d

at 698 (emphasis added) (citing Smith, 469 U.S. at 97-98). Applying these principles to the

circumstances of this case, I would hold as a matter of law that appellant’s statement constituted
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an unequivocal invocation of his right to have counsel present during the custodial interrogation

and that the investigators violated appellant’s Fifth Amendment right to counsel by failing

scrupulously to honor that request. In the face of the clear invocation of that right, the officers

lacked authority to ask any clarifying questions, and the answers to those questions must be

disregarded. 15 See id.

To the extent the Commonwealth argues and the majority implies Investigator Chaney

may have thought it was unlikely that appellant was invoking his Fifth Amendment right to

counsel because appellant initiated the meeting that was video recorded, any such inference was

objectively unreasonable on the facts of this case, viewed in the light most favorable to the

Commonwealth. Investigator Chaney’s testimony indicates appellant initiated only the second

meeting, which took place at appellant’s district court holding cell and involved appellant’s

asking to go home to see his infant son, which Chaney said would not be possible. After some

additional “basic conversation,” Investigator Chaney told appellant he would bring appellant

over to talk again later in the day, but Chaney gave no indication that he did so because appellant

15
The fact that appellant subsequently referenced his belief that he had been brought to
court that day so that counsel could be appointed for him did not negate his prior statement that
he wanted an attorney present for questioning. The fact that the clarifying questions had nothing
to do with the charged crimes does not support the conclusion that no Fifth Amendment violation
could have occurred. As the Supreme Court has observed, if a suspect invokes his right to have
counsel present, thereby indicating his

“belie[f] that he is not capable of undergoing such
questioning without advice of counsel, then it is presumed that any
subsequent waiver that has come at the authorities’ behest, and not
at the suspect’s own instigation, is itself the product of ‘inherently
compelling pressures’ and not the purely voluntary choice of the
suspect.”

Zektaw, 278 Va. at 136, 677 S.E.2d at 53 (quoting Arizona v. Roberson, 486 U.S. 675, 681
(1988)); see also Michigan v. Harvey, 494 U.S. 344, 350 (1990) (noting Edwards “established
[a] . . . prophylactic rule designed to prevent police from badgering a defendant into waiving his
previously asserted Miranda rights”), quoted with approval in Montejo v. Louisiana, 129 S. Ct.
2079, 2085 (2009).
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expressed a desire to talk to him further or to discuss the crime for which he stood charged. In

addition, appellant indicated in the dialog at the beginning of the video recording that he was in

the investigators’ office because “Ya’ll want to talk to me.” When Investigator Chaney agreed

they wanted to talk to appellant and inquired, “You want to talk to us?” appellant responded once

again, “Ya’ll want to talk to me.”

Thus, the evidence, viewed in the light most favorable to the Commonwealth, indicates

that when appellant said, “That’s what I want, a lawyer, man,” he had been brought to the

investigators’ office for additional questioning at the investigators’ request rather than his own

and the investigators were in the process of readvising him of his rights pursuant to Miranda.

Under these circumstances, the objective evidence indicates as a matter of law that appellant

unequivocally invoked his Fifth Amendment right to counsel, compelling the suppression of the

statements he made when the investigators failed immediately to cease that interrogation.

Accordingly, I respectfully dissent from the majority’s decision affirming the admission of

appellant’s uncounseled confession.

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