concurring in part and dissenting in part:
While I agree with the majority in its recitation of the applicable law, I believe that the suppression of the confession and the ordering of a new trial by this Court is inappropriate and premature. In my view, the question of whether the confession should be suppressed in this case hinges upon unresolved questions of fact, which more properly should be decided by the trial court.
In reviewing the “custodial interrogation” in this case, the majority has omitted some crucial facts in the encounter between the defendant and Detective Anderson. The events preceding the confession were as follows. After the defendant’s arrest, his mother was brought to the police station and was encouraged by an Officer Prescott to meet with her son to see if he would talk to her. The defendant conversed with his mother, but refused to talk to her about the alleged crime until he had seen a lawyer. As Mrs. Monroe was leaving, Officer Prescott asked the defendant if he was ready to give a statement. Monroe answered that, “I want a lawyer before I talk to you.” This was the third request for counsel mentioned in the majority opinion. Immediately thereafter, Detective Anderson, who had not been privy to the foregoing communications, entered the room where the defendant was and asked “if [he] could talk to him and [the defendant] indicated yes.” There is nothing in the record to suggest what either Anderson intended or the defendant understood that conversation to be about, although it might be surmised that it would be about the crime. However, before anything more was said by Anderson, the defendant commenced his own interrogation by asking Anderson several questions. Having seen his roommate, Jim Muller, enter the police station, the defendant asked Anderson what his roommate Muller was doing there. Anderson testified that he responded to the defendant as follows:
“I told him that we were going to be talking to everybody that was remotely involved in this situation and he indicated that Mr. Muller did not know anything about it, did not have anything to do with it; something of that nature, and I then asked him if he would like to give me his side of it or what did take place and he said, ‘yes.’ ”
The record further indicates that Anderson again advised Monroe of his Miranda rights, and Monroe executed a written waiver of those rights prior to making his statement concerning the alleged offense. As quoted by the majority, the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), stated that a defendant who invokes the right to have counsel present during custodial interrogation “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.” 451 U.S. at 484, 101 S.Ct. at 1885. (Emphasis added.) The first question to be asked is whether Detective Anderson’s request to talk to the defendant, under the circumstances in which it occurred, constituted an “interrogation” as defined in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). If it was not an interrogation, then according to Edwards, the request did not violate Monroe’s right to counsel. Innis held that interrogation is “any words or actions on the part of the police ... that the police should know are reasonably likely to illicit an incriminating response from the suspect.” 446 U.S. at 301, 100 S.Ct. at 1689. Whether the simple request by Anderson to talk to Monroe was by itself such that Anderson should have known that it was “reasonably likely to elicit an incriminating re*135sponse from the suspect,” is a question of fact properly left to the trial court. For example, if Anderson had merely asked the defendant Monroe which attorney that he wanted the police to call, and Monroe had then started his interrogation of Anderson regarding Muller’s presence at the jail, which ultimately led to the defendant’s statements, a factfinder would be entirely justified in finding that “the accused himself [had] initiate[d] [the] further communication, exchange[s] or conversation^] with the police,” and that the defendant had “countermand[ed] his election.” Edwards v. Arizona, 451 U.S. at 485, 101 S.Ct. at 1885 (1981).
The question of whether Monroe, by questioning Detective Anderson concerning the presence of Jim Muller at the police station, initiated the conversation which led to Anderson’s inquiry of whether Monroe would like to give “his side of it,” is a question of fact which more appropriately should be answered by the trial court. Consequently, I would remand the proceedings for findings by the trial court on these two questions. Only if the trial court on remand finds that either Detective Anderson’s initial request was an interrogation, or that the defendant’s questions to Detective Anderson did not initiate the conversation leading to the confession, should the conviction be set aside, the evidence suppressed, and a new trial granted. Otherwise, the conviction of the defendant, based upon the original jury verdict in this proceeding, should stand.