concurring:
I agree that any error of the state trial court in admitting Cooper’s taped confession into evidence was obviously harmless, and I join in the majority’s opinion, which so concludes. It is plain that, considering the overwhelming other evidence against Cooper— including his two earlier confessions to Rheupert Stewart’s murder — any error in the admission of Cooper’s third confession did not have a “substantial and injurious effect or influence,” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)), on the verdict rendered by the jury that heard Cooper’s case. That is, given the overwhelming other evidence of guilt (ie., “in light of the record as a whole,” Brecht, 507 U.S. at 638, 113 S.Ct. at 1722), there is simply no reason to believe that the jury’s verdict was attributable to the third confession, see Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S.Ct. 2078, 2081-82, 124 L.Ed.2d 182 (1993), or, for that matter, that the verdict was affected by this particular confession. There certainly is no ground for saying that the jury’s verdict was “substantially swayed” by the third confession, see Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. The allegedly inadmissible confession was, as were the prosecution’s references to the petitioner’s post-Miranda silence in Brecht, “in effect, cumulative.” See Brecht, 507 U.S. at 639, 113 S.Ct. at 1722-23. Indeed, Cooper’s two other confessions are considerably more powerful evidence of the harmlessness of the third confession here, than were the prosecution’s repeated references to the petitioner’s pre-Miranda silence in Brecht powerful evidence of harmlessness in that case. See id.
In my judgment, the court’s judgment could just as easily rest also upon the fact that, contrary to the district court’s conclusion, the taped confession was not even arguably obtained in violation of Cooper’s rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
In Davis v. United States, 512 U.S. 452, -, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994), a case not even cited, much less discussed, in the district court’s opinion, the Supreme Court held that, “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that the reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,” the cessation of questioning is not required. 512 U.S. at-, 114 S.Ct. at 2355. Rather, the Court said, law enforcement officials in such a circumstance should (ie., “it will often be good police practice,” id. at --, 114 S.Ct. at 2356) “clarify whether or not [the suspect] actually wants an attorney.” Id. The four Justices in dissent would have required additional questioning under such a circumstance. See id. at-, 114 S.Ct. at 2359.
The circumstance described by the Supreme Court in Davis is precisely that facing *373the officer who questioned Cooper. Cooper had already made two confessions, waiving his right to counsel prior to each, and had consented to have his third confession taped. The taped confession began with yet another recitation to Cooper of his Miranda rights, followed by the question, “Do you wish to answer any of the questions that we may ask you?” Cooper responded, ‘Tea.” The interviewing officer then asked, “Do you understand each of these rights that I have explained to you?” Cooper again responded, ‘Tea. I can’t afford no lawyer.” And when the officer asked Cooper again, “Do you wish to answer these questions,” Cooper yet again responded, ‘Tea.”
Thereafter, the officer asked Cooper, “Do you wish to have a lawyer present” and ‘Tou want a lawyer present,” to which Cooper responded again, almost certainly perfunctorily, ‘Tea.” It is as a consequénce of this last answer that Cooper contends he had invoked his right to remain silent such that his subsequent confession was unconstitutional under Edwards.
If one considers Cooper’s “yea” answer to this last question in complete isolation, as Cooper, naturally, urges, then of course his answer was an unambiguous invocation of his right to counsel. But when considered in the context of the immediately preceding questions and answers, and especially Cooper’s earlier waivers and confessions, it is rather plain — and certainly would have reasonably appeared to the officer — that Cooper simply misspoke and answered “yea” (as he had answered the several preceding questions) when he meant “no,” that he did not request the presence of a lawyer. There is no question at all that his answer was, at the very least, ambiguous in the context of his immediately preceding, unequivocal expressions of desire to answer the officer’s questions without a lawyer present and his prior full confessions.
Assuming (drawing all inferences in Cooper’s favor) that the response was ambiguous, the interviewing officer proceeded exactly as the Supreme Court said he should have proceeded in order to eliminate any ambiguity: He sought to clarify Cooper’s response through a reformulation of the question, asking Cooper, “Do you wish to answer these questions without a lawyer.” Having received the expected corrected response “[y]ea” from Cooper, the interviewing officer even went further to make absolutely sure that in fact Cooper was not invoking his right to counsel, asking Cooper, “Do you wish to answer these questions without your attorney present, without an attorney present.” And, as if in recognition of the confusion his earlier answer had caused and to remove any .doubt that he wished to proceed without counsel, Cooper replied affirmatively, “[y]es.” In the face of this sequence of questions and answers, and against the backdrop of two earlier full confessions, any argument that Cooper’s Edwards rights were violated is frivolous.
Cooper contends that the state waived its right to appeal the Edwards issue because it did not object to the magistrate’s report originally finding the Edwards violation. However, he is simply mistaken in this argument. Although we and the Supreme Court have long held that the losing party before the district court and before a magistrate must preserve every claim it intends to raise on appeal lest it waive those claims, see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (district court); United States v. George, 971 F.2d 1113 (4th Cir.1992) (same); Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.1989) (magistrate), we have consistently held that the prevailing party in either forum need not advance on appeal every error it believes was committed by the magistrate or court in the course of ruling in that party’s favor. See RTC v. Maplewood Investments, 31 F.3d 1276 (4th Cir.1994); Blackwelder v. Milkman, 522 F.2d 766, 771-72 (4th Cir.1975) (a prevailing party “may support the judgment by urging any theory, argument, or contention which is supported by the record, even though it was specifically rejected by the lower court.”); United States v. Schronce, 727 F.2d 91, 92 (4th Cir.) (holding that the same rules that determine whether we can review errors not brought to the attention of the district court apply to whether a party may challenge before a district court errors committed by a magistrate), cert. denied, 467 U.S. 1208, 104 S.Ct. *3742395, 81 L.Ed.2d 352 (1984). Accordingly, because the magistrate in this case ruled for the government, affirming Cooper’s conviction and finding any error harmless, the State was under no obligation to object to the magistrate’s finding of an Edwards violation, Mr. Zelenka’s inexplicable “concession” to the contrary on behalf of the State notwithstanding.
WILKINSON, Chief Justice, WIDENER and WILLIAMS, Circuit Judges, join this concurring opinion.