COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner and Lemons
Argued at Richmond, Virginia
DAVID A. McDANIEL
OPINION BY
v. Record No. 2152-97-1 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 14, 1999
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
James B. Thomas for appellant.
Ruth M. McKeaney, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Prior to trial, David A. McDaniel filed a motion to suppress
statements he made to the police. The trial judge denied the
motion and, after a bench trial, convicted McDaniel of statutory
burglary, grand larceny, and receiving stolen property. On
appeal, McDaniel contends the police interrogated him in
violation of his Fifth Amendment right to counsel and the trial
judge erred in refusing to suppress his statement. A panel of
this Court, with one judge dissenting, reversed the trial
judge's refusal to suppress the evidence. See McDaniel v.
Commonwealth, 28 Va. App. 432, 506 S.E.2d 2 (1998). We stayed
the mandate of that decision and granted rehearing en banc.
Upon rehearing en banc, we reverse the convictions and remand
for a new trial.
I.
The facts pertinent to the motion to suppress are
essentially undisputed. Detective Rodney Caison of the Hampton
City Police Department testified that he arrested David A.
McDaniel for burglary and larceny pursuant to arrest warrants.
From a preprinted card, the detective read to McDaniel a
statement of Miranda rights but did not question McDaniel at
that time. After searching McDaniel's residence, the detective
transported McDaniel to an investigative services office.
There, the detective began to interrogate McDaniel concerning
his involvement in the crimes.
Before responding to the interrogation, McDaniel stated, "I
think I would rather have an attorney here to speak for me."
The detective testified that he interpreted McDaniel's statement
to be a question and told McDaniel that he could not tell him
whether he needed an attorney. Continuing the interrogation,
the detective told McDaniel that he should be truthful because
two witnesses saw him commit the offenses and because McDaniel's
accomplice had confessed to the crimes and implicated McDaniel
in the crimes. The detective testified that McDaniel responded,
"[y]ou already know everything," and then confessed to
committing the crimes.
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McDaniel also testified at the suppression hearing. He
confirmed that he made the request for an attorney as recited by
the detective.
The trial judge found that McDaniel's request for an
attorney was not a question. However, reasoning that "[t]he
word rather in the middle of his statement indicates some degree
of choice," the trial judge ruled that the request for counsel
was ambiguous.
II.
To ensure the right against compelled self-incrimination,
the Fifth Amendment provides that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."
U.S. Const. amend. V. More than thirty years ago, the United
States Supreme Court addressed "the admissibility of statements
obtained from an individual who is subjected to custodial police
interrogation and the necessity for procedures which assure that
the individual is accorded his [or her] privilege under the
Fifth Amendment to the Constitution not to be compelled to
incriminate himself [or herself]." Miranda v. Arizona, 384 U.S.
436, 439 (1966). The Court "held . . . that . . . [an accused]
subject to custodial interrogation has the right to consult with
an attorney and to have counsel present during questioning, and
that the police must explain this right [to the accused] . . .
before questioning begins." Davis v. United States, 512 U.S.
452, 457 (1994) (citing Miranda, 384 U.S. at 469-73).
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After the police have advised an accused of the Miranda
rights, the accused may make a knowing and intelligent waiver of
those rights and respond to the police interrogation. See
Edwards v. Arizona, 451 U.S. 477, 483-84 (1981). However, if
the accused "express[es] his desire to deal with the police only
through counsel, [the accused] is not subject to further
interrogation by the authorities until counsel has been made
available to him . . . [or] the accused himself initiates
further communication, exchanges, or conversations with the
police." Id. at 484-85. Recently, the Supreme Court ruled that
the test for determining whether the accused invoked the right
to counsel is an objective one. See Davis, 512 U.S. at 457-59.
The Court must determine whether the accused "articulate[d] 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." Id. at 459.
Although the detective testified that he "interpreted"
McDaniel's response to be a question, and not a request for an
attorney, the trial judge rejected that explanation after
hearing the detective recite the words and provide his
recollection of inflections that McDaniel used. The trial judge
stated, "it's not a question -- there's no way it could be a
question." We agree with the trial judge's finding. Nothing
about the construction of McDaniel's words indicates that
McDaniel spoke anything other than a declarative statement.
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The trial judge also found, however, that "[t]he word
'rather' in the middle of his statement indicates some degree of
choice." Based on that finding, the trial judge ruled that the
statement was ambiguous. We disagree. The statement, as
ordinarily understood, is unambiguous.
Although the record does not contain the precise language
contained on the card from which the detective read to McDaniel
the Miranda rights, those rights typically are worded to inform
an accused as follows:
MIRANDA WARNING
1. You have the right to remain silent.
2. Anything you say can and will be used
against you in court.
3. You have the right to talk to a lawyer
and have him present while you are
being questioned.
4. If you cannot afford to hire a lawyer,
one will be appointed to represent you,
without cost, before any questioning, if
you desire one.
Harrison v. Commonwealth, 244 Va. 576, 578, 423 S.E.2d 160, 161
(1992). See also Smith v. Commonwealth, 7 Va. App. 310, 312,
373 S.E.2d 340, 341-42 (1988).
McDaniel's response after the detective informed him of the
Miranda rights was, "I think I would rather have an attorney
here to speak for me." That statement contains no ambiguity.
The word "think" is generally defined "to have in one's mind as
an intention or desire," Webster's Third New International
Dictionary of the English Language 2376 (1986), and the word
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"rather," in the context of McDaniel's statement, means "more
readily" or "prefer to." Id. at 1885. The statement was an
appropriate response to the warnings, which gave McDaniel the
choice of speaking with the detective without an attorney or
having an attorney present while the detective questioned him.
By indicating his preference, McDaniel made his choice clear,
informing the detective that he desired to have an attorney
speak for him. See State v. Jackson, 497 S.E.2d 409, 412 (N.C.
1998) (ruling that the response "'I think I need a lawyer
present,' . . . was not an ambiguous statement"). In requesting
an attorney, McDaniel was not required to "'speak with the
discrimination of an Oxford don.'" Davis, 512 U.S. at 459.
McDaniel's statement is qualitatively different than
statements held to be ambiguous by the United States Supreme
Court and the Supreme Court of Virginia. McDaniel did not
phrase his response in the form of a question. See Mueller v.
Commonwealth, 244 Va. 386, 396-97, 422 S.E.2d 380, 387 (1992)
("Do you think I need an attorney here?"); Eaton v.
Commonwealth, 240 Va. 236, 252-54, 397 S.E.2d 385, 395-96 (1990)
("You did say I could have an attorney if I wanted one?").
Furthermore, McDaniel expressed more than a mere "reservation"
about continuing the interrogation without counsel. See Davis,
512 U.S. at 462 ("Maybe I should talk to a lawyer."); Midkiff v.
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Commonwealth, 250 Va. 262, 267, 462 S.E.2d 112, 115-16 (1995)
("I'm scared to say anything without talking to a lawyer."). 1
We hold that McDaniel unambiguously responded with
sufficient clarity that a reasonable police officer would have
understood that McDaniel wanted an attorney. Thus, the
interrogation should have ceased. See Edwards, 451 U.S. at
484-85. Because we conclude that the detective gained
McDaniel's confession by continuing the interrogation after
McDaniel had invoked his Fifth Amendment right to counsel, we
reverse the trial judge's denial of the suppression motion.
Accordingly, we reverse the convictions and remand this matter
to the circuit court for a new trial.
Reversed and remanded.
1
In Davis, the suspect stated during the interrogation,
"Maybe I should talk to a lawyer." 512 U.S. at 455. He then
continued to talk to the investigator. The Court concluded that
the confession did not have to be suppressed because Davis only
indicated that he "might want a lawyer." Id. at 462 (emphasis in
original). The Court also noted, however, that later, while still
being interrogated, Davis said, "I think I want a lawyer before I
say anything else." Id. at 455 (emphasis added). The Court
observed that the interrogation then ceased immediately. Id.
While the issue whether Davis' second statement was ambiguous was
not before the Court, the fact that the interrogators ceased
questioning Davis indicates that the investigators understood
Davis' statement to be a clear request for counsel. We believe
that the Court's recitation of the circumstances leading to the
cessation of the questioning is significant.
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Lemons, J., with whom Bumgardner, J., joins, dissenting.
The trial court found that McDaniel's statement "I think I
would rather have an attorney here to speak for me" was not an
unequivocal request for counsel. In reversing the conviction
the majority substitutes its own findings for that of the trial
court.
Detective Caison obtained probable cause for a warrant
charging McDaniel with burglary and grand larceny. Having been
previously convicted of four misdemeanors and one felony,
McDaniel had prior experience with the criminal justice system.
Caison went to McDaniel's home and placed him under arrest. At
that point, Caison read McDaniel a statement of his Miranda
rights, which McDaniel understood. McDaniel wished to continue
speaking to Caison but made no statements that "caused [Caison]
any concern." Caison then requested McDaniel's permission to
search the house, which McDaniel granted. McDaniel's wife
escorted Caison to the garage, where Caison observed a
"gas-powered Sears pressure washer." McDaniel was then
transported to Investigative Services for further interrogation.
McDaniel was not re-read his Miranda rights at the police
station; however, he continued "discussing the case" with
Caison. Over one hour had elapsed since the reading of his
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Miranda rights. 2 "At the beginning of the interview" while
"discussing the case," McDaniel stated to the detective, "I
think I would rather have an attorney here to speak for me."
The detective responded to McDaniel by saying, "I can't tell you
if you need an attorney or not" and told McDaniel that he needed
to be "truthful to the Court, because the facts are we have two
witnesses that were working surveillance and saw you at Sears in
the compound" and that the other suspect had "already confessed
and implicated" McDaniel. Thereafter McDaniel made
incriminating statements concerning the charges.
At the suppression hearing, referring variously to the
defendant's "emotion," "demeanor," "body language," and the
circumstances of the encounter, the detective stated that, "If
you were there and around the atmosphere and everything, he was
looking at me for a response." Although the trial court
rejected the detective's characterization of McDaniel's
statement as a question, the trial court compared the statement
to others considered by the Supreme Court of Virginia and the
United States Supreme Court and found that, "[t]here is an
equivalent amount of equivocation, ambiguity, in the statement
as spoken by this defendant, as there has been in those other
cases where other language was cited." Whether McDaniel's
2
McDaniel was arrested and read his Miranda rights at
4:45 p.m. He gave a written statement at 6:23 p.m. after a
thirty-minute interview.
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statement was a question is not the issue in this case. The
trial judge focused upon the issue in this case: whether
McDaniel's statement, under the circumstances and in context,
was equivocal.
McDaniel does not contend that his incriminating statements
were involuntary. Rather, he argues that the rule articulated
in Edwards v. Arizona, 451 U.S. 477 (1981), required cessation
of interrogation after an unequivocal invocation of the right to
counsel.
Under Edwards, law enforcement officers must immediately
cease questioning a suspect who has clearly asserted his right
to have counsel present during custodial interrogation. See id.
Following Edwards, many courts addressed what it means to
"clearly assert" the right to have counsel present. The United
States Supreme Court revisited this issue in Davis v. United
States, 512 U.S. 452, 455 (1994), where the defendant had been
read his Miranda rights, waived his right to remain silent, and
after one and one-half hours of interrogation stated, "Maybe I
should talk to a lawyer." In finding that Davis' statement was
equivocal, the Court stated:
The applicability of the rigid
prophylactic rule of Edwards requires courts
to determine whether the accused actually
invoked his right to counsel. To avoid
difficulties of proof and to provide
guidance to officers conducting
interrogations, this is an objective
inquiry. Invocation of the Miranda right to
counsel requires, at a minimum, some
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statement that can reasonably be construed
to be an expression of a desire for the
assistance of an attorney. But if 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 458-59 (citations and quotations omitted).
The prohibition of further questioning after clear
assertion of the right to counsel during custodial interrogation
is not required by the Fifth Amendment's prohibition on coerced
confessions, rather, it is a prophylactic rule created by the
courts. In declining to expand the rule, the Court in Davis
further stated:
But 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,
because it 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. at 460 (citations and quotations omitted).
Declining to adopt a rule requiring questions clarifying a
suspect's ambiguous statements, the Davis Court stated:
But we are unwilling to create a third layer
of prophylaxis to prevent police questioning
when the suspect might want a lawyer.
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Unless the suspect actually requests an
attorney, questioning may continue.
Id. at 462.
From the direction given by the United States Supreme Court
in Davis, two things are abundantly clear: 1) the test to
determine if the statement of the defendant "clearly asserts"
his right to counsel is an objective test viewed through the
eyes of a reasonable police officer in light of the totality of
the circumstances; and, 2) the officer has no duty to ask
questions to resolve ambiguity before questioning may continue.
The burden is initially upon the Commonwealth to prove a
waiver of Miranda rights. As we have previously stated:
The Commonwealth bears the burden of proving
by a preponderance of the evidence that the
accused waived his Miranda rights. It must
show that the accused knowingly and
intelligently waived the constitutional
privilege against self-incrimination and the
right to counsel. Additionally, the
Commonwealth must prove the voluntariness of
a defendant's confession by a preponderance
of the evidence. Whether a confession is
voluntary requires an independent
examination of the totality of the
circumstances to determine whether the
statement is the product of an essentially
free and unconstrained choice by its maker,
or whether the maker's will has been
overborne and his capacity for
self-determination critically impaired. In
making this independent determination,
however, an appellate court is bound by the
trial court's subsidiary factual findings
unless those findings are plainly wrong.
Conflicts in evidence present factual
questions that are to be resolved by the
trial court, and whether an accused
requested counsel is also a factual
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determination that will not be disturbed on
appeal unless clearly erroneous.
Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718,
722-23 (1992) (internal citations omitted).
Although an express written or oral statement of waiver of
the right to remain silent or of the right to counsel is strong
evidence of waiver, it is not necessary. "[W]aiver can be
clearly inferred from the actions and words of the person
interrogated." North Carolina v. Butler, 441 U.S. 369, 373
(1979).
McDaniel was read a statement of his Miranda rights at his
home. The detective testified that McDaniel understood them and
continued to engage in conversation as he gave the detective
permission to search his home. Upon discovery of a "gas-powered
Sears pressure washer," McDaniel was transported to
Investigative Services for further interrogation. Only after
McDaniel reached the police station, and while the investigating
officer and McDaniel were "discussing the case" did McDaniel
make the equivocal statement "I think I would rather have an
attorney here to speak for me."
Even McDaniel focuses his argument upon whether he made an
unequivocal invocation of the right to counsel after previously
waiving his rights under Miranda. In his brief, McDaniel
states:
Here, Mr. McDaniel was advised of his
rights, seemed to understand them, then
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transported to an investigating area, where
he asked for an attorney prior to any more
questioning.
(Emphasis added).
The Supreme Court in Davis clearly stated that after a
waiver of Miranda rights,
[the suspect] must 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. If the
statement fails to meet the requisite level
of clarity, Edwards does not require that
the officers stop questioning the suspect.
Davis, 512 U.S. at 459. The trial court found that McDaniel's
statement did not meet this test.
Counsel for McDaniel conceded at oral argument that the
statement "I think I would rather have an attorney here to speak
for me" could have several meanings depending upon context and
other circumstances such as voice inflection and body language.
The majority is unwilling to embrace the honest concession of
counsel and simply declares the words themselves to be
unambiguous. The majority focuses upon the trial court's
observation that "[t]he word 'rather' in the middle of the
sentence indicates some degree of choice." The majority ignores
the trial judge's consideration of the context of the
declaration and circumstances surrounding it and concludes
"[t]he statement, as ordinarily understood, is unambiguous."
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The majority's sole focus upon the word "rather" both fails
to apply the objective analysis required under Davis and ignores
its context within the sentence. McDaniel did not state "I
would rather have an attorney here to speak for me." McDaniel
stated "I think I would rather have an attorney here to speak
for me." (Emphasis added). The trial court's finding was based
upon the statement as a whole, not merely upon its
interpretation of the word "rather."
A correct analysis of the statement requires that we
consider the statement in its entirety. The word "think" is
defined as "to believe, to consider, to conclude, to esteem; to
recollect or call to mind." Black's Legal Dictionary 1479 (6th
ed. 1990). The existence of numerous and diverse definitions,
including, "to consider" underscores the ambiguity of the term
"think." When the sentence is considered in its entirety, "I
think" imports inherent ambiguity to the term "rather" and to
the sentence as a whole. Again, McDaniel's counsel agreed, but
the majority has chosen to ignore his concession.
As the United States Supreme Court has made abundantly
clear, the trial court must ask if a reasonable police officer
would have considered the utterance in context and under
circumstances sufficient to constitute a clear assertion of the
right to counsel. In this case the trial court considered the
testimony of witnesses concerning the circumstances surrounding
the statement made by McDaniel. Although rejecting the
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conclusion drawn by the officer that the defendant was asking a
question, it is clear that the trial court agreed with the
officer that the statement made by McDaniel was equivocal and
ambiguous such that it invited a response from the detective.
The detective referred to "emotion," "demeanor," and "body
language," and the trial court was entitled to rely upon this
testimony in its interpretation of McDaniel's statement. Just
as the law has historically trusted spontaneous utterances to be
trustworthy, the trial court was entitled to consider the
spontaneous reaction of the detective as evidence of the
equivocal nature of McDaniel's statement. Unless the trial
court's finding is clearly wrong or without evidence to support
it, basic appellate principles require that we uphold its
ruling.
Our Court and the Supreme Court of Virginia have engaged in
the same analysis in an effort to apply legal principles of
higher courts while demonstrating deference to the factual
findings of the trial court. In Midkiff v. Commonwealth, 250
Va. 262, 462 S.E.2d 112 (1995), the Supreme Court of Virginia
applied the objective test set out in Davis. The Court held
that the suspect's statement "I'm scared to say anything without
talking to a lawyer" was not a clear and unequivocal invocation
of the right to counsel and that the trial court did not err in
refusing to suppress his statements that followed.
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Recently, in Green v. Commonwealth, 27 Va. App. 646, 500
S.E.2d 835 (1998), we considered whether a suspect's statement
that "he didn't know anything about this incident and he wasn't
going to say anything else unless he had an attorney" was a
clear and unequivocal invocation of the right to counsel. Green
argued that his statement constituted a clear and unequivocal
request for counsel and that any statement made by him that
followed should have been suppressed.
We rejected Green's argument, relying on various cases
which the majority opinion in this case attempts to distinguish
from the case now before us. We reiterated the objective test
in Davis, stating, "[t]he Virginia Supreme Court has declared
that a clear and unambiguous assertion of the right to remain
silent or to counsel is necessary before authorities are
required to discontinue an interrogation." Green, 27 Va. App.
at 653, 500 S.E.2d at 838.
It is important to note that both the Arizona and Ohio
Supreme Courts have considered nearly the identical issue before
us. See State v. Eastlack, 883 P.2d 999 (Ariz. 1994); State v.
Henness, 679 N.E.2d 686 (Ohio 1997). In Eastlack, during
custodial interrogation the defendant stated, "I think I better
talk to a lawyer first." Finding that the statement was not an
unequivocal request for counsel, the court stated, "[t]he
statement itself was ambiguous, using the equivocal language 'I
think' rather than, the language of a clear request." Eastlack,
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883 P.2d at 1007. In Henness, the court observed, "we find that
appellant's statement 'I think I need a lawyer . . .' is just as
ambiguous as the statement made by the defendant in Davis."
Henness, 679 N.E.2d at 696.
Courts in other states have reached similar results. In
State v. Parker, 886 S.W.2d 908 (Mo. 1994), the Supreme Court of
Missouri held that the defendant's statement that "neither
Parker's refusal to sign the waiver form, nor his statement that
he ‘ought’ to talk to a lawyer" constituted an unambiguous
invocation of his right to counsel. Id. at 918 (emphasis
added). In State v. Travis, 545 P.2d 986 (Ariz. App. 1976), the
Court of Appeals of Arizona held that it did not consider the
defendant's statements that "he might want an attorney" to be
"sufficient to have required cessation of further questioning."
Id. at 991. Similarly, in People v Kendricks, 459 N.E.2d 1137
(Ill. App. 1 Dist. 1984), the Appellate Court of Illinois held
that the defendant's statement to the police that "You know, I
kind of think I know [sic] a lawyer, don't I?" or "I think I
might need a lawyer" were not clear assertions of the right to
counsel. The Kendricks court relied heavily upon the reasoning
in People v. Krueger, 412 N.E.2d 537 (Ill. 1980). In Krueger,
the Illinois appellate court held that the defendant's
statement, "Maybe I ought to have an attorney," "Maybe I need a
lawyer," or "Maybe I ought to talk to an attorney" was not a
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clear, unambiguous invocation of the right to counsel, and the
officers were not required to cease questioning. Id. at 540.
Additionally, in the context of jury selection we have
found juror responses such as, "I think," "I don't know," and "I
would try" to be statements of equivocation. See Brown v.
Commonwealth, 29 Va. App. 199, 510 S.E.2d 751 (1999). The
majority's assertion that the phrase "I think" is unambiguous as
a matter of law in the context of a request for counsel is
impossible to reconcile.
Given the passage of time from the initial reading of
Miranda rights, the search of his home in his presence and by
consent, and the continued dialogue with the detective about the
case, the trial judge did not err in concluding that McDaniel
waived his Miranda rights and analyzing the case under Edwards
and Davis. Further, I believe, as the Supreme Courts of Arizona
and Ohio have concluded, the language utilized by McDaniel is
ambiguous on its face. Additionally, the factual circumstances
and context of the statement also provide ample evidence of its
ambiguity. Applying the legal principles articulated by courts
above and proper deference to factual findings and reasonable
inferences drawn by the trial court, I would hold that
McDaniel's statement was not a clear assertion of his right to
counsel. I would uphold the convictions.
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