dissenting. I must dissent. Mr. Lacy clearly invoked his right to the assistance of counsel during interrogation when he informed. Lt. Chapman that he wished to assert his right to counsel. Lt. Chapman responded appropriately and left Mr. Lacy alone. A few minutes later, however, Sgt. Dancy returned to the interrogation room in the company of Mr. Lacy’s mother, Ms. Tolliver. It is this encounter, which the majority merely glosses over, that forces me to dissent from the decision reached by the court today.
When a suspect in custody is subjected to interrogation, the suspect must be informed of his right to counsel and his right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966). If at any time during the custodial interrogation, the suspect unambiguously invokes his right to counsel, all interrogation must immediately cease and may not be resumed, absent a break in custody. Edwards v. Arizona, 451 U.S. 477 (1981); McNeil v. Wisconsin, 501 U.S. 171 (1991). Once the suspect has invoked his right to counsel, law enforcement officers may not resume the interrogation unless it is the suspect who initiates the exchange. Edwards v. Arizona, supra.
In the instant case, Mr. Lacy clearly and unambiguously invoked his right to counsel when he engaged in the following exchange with Lt. Chapman:
Mr. Lacy: Y’all have just sat up here all this time, catering to me. My mom’s out there about to stroke out, but I’m just ready to go on to jail. I know y’all are going to get pissed.
LIEUTENANT: We aren’t going to be upset about it, but it’s like I told you earlier, our main concern is trying to at least get her to where she goes to a proper place.
Mr. Lacy: It’s best I go on to jail. I feel like I’ve wasted y’all’s time. I heard my mom out there getting upset.
LIEUTENANT: No, I just saw your mom. She’s fine.
Mr. LACY: I can say this about your detectives. They’re professional. I will go on and exercise my right to see an attorney. I’m ready to go on to jail.
Lieutenant: Okay.
(Emphasis added.) At that point, Lt. Chapman acted appropriately and ceased his discussion with Mr. Lacy. After a few minutes, however, Sgt. Dancy returned to the interrogation room with Mr. Lacy’s mother. Upon entering the room, Ms. Tolliver confronted Mr. Lacy with evidence of a bloody palm print belonging to Mr. Lacy that had been recovered from the room in which Ms. Henderson died. Sgt. Dancy provided Ms. Tolliver with the evidence. The following exchange then occurred:
Ms. TOLLIVER: John Aaron, now I want you to see what they’ve got here and I want you to tell me .... This is the bloody print that was on the wall, and will you read what this says? Did you accidentally do this? Son, if you accidentally did it, then if you accidentally did this, son, you need to be honest.
(Sgt. Dancy then speaks to Ms. Tolliver, telling her what he has told Mr. Lacy.)
Ms. TOLLIVER: If this woman is laying dead in the woods or someplace, would you want Blake (?) and Morgan to walk up on her?
Mr. Lacy: No.
Ms. TOLLIVER: If this lady is laying dead someplace, she needs to be tended to.
(Ms. Tolliver begins to cry and Mr. Lacy asks Sgt. Dancy if he would allow Mr. Lacy to speak with Ms. Tolliver.)
Ms. TOLLIVER: Son, I’m OK. Listen to me. Listen to me. It’s just hard for Mama to absorb everything, okay? But if this lady’s laying dead someplace, it’s the Christian thing to do to see to it she’s tended to before some little kid or an animal finds her.
(Mr. Lacy again asks Sgt. Dancy to allow him to speak with his mother. At this point, someone from outside the room interrupts to tell Sgt. Dancy that the captain wants to talk to him. Before he leaves the room, Sgt. Dancy addresses Mr. Lacy with the following comment.)
SGT. Dancy: John, I’m not trying to hurt you, man. I’m trying to he honest with you.
Mr. Lacy: I know.
(Emphasis added.)
Following this encounter, Mr. Lacy continued talking with his mother for several minutes and then eventually agreed to speak with Sgt. Dancy again. The constitutional infirmity arises because it was Sgt. Dancy, not Mr. Lacy, who reinitiated the interrogation process during the above encounter. Mr. Lacy had been sitting alone in the room after telling Lt. Chapman that he wanted to see an attorney. Sgt. Dancy1 reentered the room with Ms. Tolliver and observed as she attempted to convince her son to make a confession about where Ms. Flenderson’s body could be found. Had Sgt. Dancy’s involvement been limited to observation, there would be no constitutional violation. Arizona v. Mauro, 481 U.S. 520 (1987). However, Sgt. Dancy was not merely a casual observer. As noted above, Sgt. Dancy provided evidence to Ms. Tolliver to bolster her persuasive efforts. He then interrupted Ms. Tolliver’s persistent demands for information to tell her what he had already told Mr. Lacy in his own attempts to persuade him to confess. Finally, when his captain called him from the room, Sgt. Dancy turned directly to Mr. Lacy and said “I’m not trying to hurt you, man. I’m trying to be honest with you.” By integecting this statement into the conversation, Sgt. Dancy was clearly attempting to persuade Mr. Lacy to reveal incriminating information. The fact that the comment was not a direct question is irrelevant. An interrogation occurs when an officer uses any words or actions that the officer should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291 (1980). There was no conceivable purpose for Sgt. Dancy’s comment other than to elicit an incriminating response from Mr. Lacy. While Sgt. Dancy made the statement as he was leaving the room, he was nevertheless aware that Mr. Lacy’s conversation with his mother was not only being observed by other officers, but it was also being recorded on videotape. Furthermore, Sgt. Dancy was aware that Ms. Tolliver was firmly and persistently demanding that Mr. Lacy tell her where Ms. Henderson was buried.
The majority today glosses over this encounter with Sgt. Dancy, claiming that Mr. Lacy dismissed Sgt. Dancy from the room and that, when Sgt. Dancy returned, Mr. Lacy waived his right to counsel. The fact is that Mr. Lacy asked Sgt. Dancy twice to be allowed to speak privately with his mother; but, it was not until the sergeant was called from the room by a superior officer that he actually left Mr. Lacy alone with his mother. Even then, Sgt. Dancy knew that Mr. Lacy’s interaction with his mother was being observed and recorded.
After several more minutes of persuasive efforts by Ms. Tolliver, Mr. Lacy finally acquiesced to his mother’s insistence that he tell Sgt. Dancy where to find Ms. Henderson’s body. At this point, Mr. Lacy denied having requested counsel and Sgt. Dancy xe-mirandized him. However, it was too late. Sgt. Dancy had unconstitutionally reinitiated the interrogation of Mr. Lacy when he entered the room with Ms. Tolliver and actively aided her in her persuasive efforts following Mr. Lacy’s unequivocal assertion of his right to counsel. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. at 484. Once an accused has “expressed his desire to deal with the police only through counsel,” he 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.” Id. at 484-85.
The purpose of the Edwards rule is to protect a suspect’s desire to deal with the police only through counsel. McNeil v. Wisconsin, supra. It is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Minnick v. Mississippi, 498 U.S. 146, 150 (1990); Michigan v. Harvey, 494 U.S. 344 (1990); McNeil v. Wisconsin, supra. The suspect’s right to counsel cannot be adequately protected where the suspect is subject to “persistent attempts by officials to persuade him to waive his rights,” as Mr. Lacy was in the instant case. Minnick v. Mississippi, 498 U.S. at 153. The prophylactic rule requiring the suppression of any statement made following police-initiated interrogation of a suspect who has asserted his right to counsel “ensures that any statement made in subsequent interrogation is not the result of coercive pressures.” Minnick v. Mississippi, 498 U.S. at 151.
To effectuate the above-stated purpose, the Edwards decision created a bright-line rule of suppression because it must be presumed that any subsequent waiver of the previously asserted right to counsel that comes at the behest of law enforcement, rather than the suspect’s own initiation, is the product of the “inherently compelling pressures” of custodial interrogation rather than the “purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681 (1988) (quoting Miranda v. Arizona, supra). “The merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick v. Mississippi, 498 U.S. at 151. Its “clear and unequivocal” rule, like its predecessor Miranda v. Arizona, “has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible.” Minnick v. Mississippi, 498 U.S. at 151. “Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he ‘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.’ ” Arizona v. Roberson, 486 U.S. at 681 (quoting Edwards v. Arizona, supra).
The case before us today is precisely the situation the Edwards court sought to prevent. Mr. Lacy unequivocally invoked his right to counsel. Interrogation was then reinitiated by Sgt. Dancy. Sgt. Dancy’s persuasion, combined with the extensive persuasive efforts of Ms.Tolliver, ultimately led to Sgt. Dancy’s desired result — Mr. Lacy waived his previously asserted right to counsel. But, even then, Mr. Lacy attempted to reassert that right. The following exchange occurred when Sgt. Dancy began filling out a rights form.
Mr. LACY: (to his mother) You don’t want me to talk to an attorney first?
Ms. TOLLIVER: John, I don’t know. I’ve never been involved in this. But he said he wants to help you.
MR. LACY: I can’t talk to no attorney tonight?
SGT. Dancy: Well, yeah. You can do anything you want to, John.
Mr. LACY: I’d rather do that.
Ms. Tolliver: John . . .
Mr. LACY: I’d rather do that and still talk to you.
Ms. Tolliver: He wants to do both.
Mr. LACY: I want to talk to an attorney.
SGT. DANCY: They’re going to tell you not to, but that’s okay. Who do you want to call?
Mr. Lacy: Greg Bryant.
Ms. TOLLIVER: You’ll have to use a public defender. I can’t afford Greg Bryant.
Mr. Lacy: Can you get a public defender up here?
Sgt. Dancy: No. Not tonight. Not that I’m aware of.
Ms. TOLLIVER: It’s just what he said. He can take you and have you charged with first degree or he can take you for accidental ... manslaughter.
Sgt. Dancy: I’ve never got a public defender up here at night. I don’t know.
Mr. Lacy: Could you try?
SGT. Dancy: I’ll see if I can. I don’t know. This is up to you John. I’m through. I’m through.
(Emphasis added.)
Following this exchange, Sgt. Dancy left the room again, ceasing the interrogation as he is required to do. There is no evidence that the State ever attempted to contact either Greg Bryant, whom Mr. Lacy requested by name, or the public defender’s office, whom Mr. Lacy resorted to upon being informed that he could not have Mr. Bryant. Finally, after eight hours of interrogation, having been informed that he could not have the counsel he clearly and unequivocally requested on multiple occasions, Mr. Lacy confessed to the murder of Ms. Henderson without the assistance of counsel.
The majority holds that Mr. Lacy voluntarily waived his right to counsel; but, that is not the deciding issue in this case. A determination of voluntariness must certainly be made when a suspect has waived his right to counsel, but that determination is not made until after it is proven that the suspect initiated the dialogue with the police. Oregon v. Bradshaw, 462 U.S. 1039 (1983). The issue before us today is whether Mr. Lacy initiated the contact that ultimately led to his waiver of the right to counsel and his confession. To this question, the clear and unmistakable answer is no. Mr. Lacy asked for counsel repeatedly. A suspect’s request for counsel during interrogation indicates that he does not “feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation.” Arizona v. Roberson, 486 U.S. at 684. Mr. Lacy finally surrendered to the pressures of custodial interrogation and waived his previously invoked right to counsel. This ultimate waiver of his right to counsel is not surprising considering that Mr. Lacy had not been provided with the attorney he had already requested. See Arizona v. Roberson, 486 U.S. at 686 n.6. As a result of the officers’ failure to honor Mr. Lacy’s request for counsel and Sgt. Dancy’s initiation of interrogation in violation of the “clear and unequivocal” Edwards rule, Mr. Lacy’s statement should have been suppressed. For the above-stated reasons, I would reverse and remand.
It should be noted that the suppression of Mr. Lacy’s confession would not leave the State without recourse upon the retrial of Mr. Lacy. Before he invoked his right to counsel and Sgt. Dancy reinitiated the interrogation, Mr. Lacy made highly incriminating statements to Ms. Tolliver. Specifically, he told his mother that he knew Ms. Henderson was dead and that she was buried in Mayflower.2 In addition, the State has physical evidence linking Mr. Lacy to the crime. Thus, there is ample evidence available to the State upon retrial.3
THORNTON, J., joins in this dissent.The record is silent as to whether Lt. Chapman informed Sgt. Dancy of Mr. Lacy’s request for counsel. Sgt. Dancy is charged with having knowledge of any assertion of the right to counsel, regardless of whether he had actual knowledge. Arizona v. Roberson, 486 U.S. 675, 687 (1988).
As a result of these statements by Mr. Lacy, Ms. Henderson’s body eventually would have been recovered from its burial site on Ms. Tolliver’s property at Mayflower. “[W]hen, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Nix v. Williams, 467 U.S. 431, 448 (1984).
The postscript at the end of the majority opinion can only be characterized as unsolicited dicta. It is certainly difficult to fathom why the majority hints at “one additional point” and then declines to address it because neither of the parties argue the point.