joins, concurring in part and dissenting in part.
I concur with the majority in all respects except the rule adopted by the majority to determine whether an individual invoked his Fifth Amendment right to counsel.
Edwards v. Arizona, 451 U.S. 477 (1981), requires the police to stop questioning a suspect when he invokes his Fifth Amendment right to counsel. Interrogation may not be resumed until a lawyer is present, or until the suspect himself reinitiates the dialogue. The question in this case is whether Dennis Wayne Eaton invoked his Fifth Amendment right to counsel during his interrogation by Officers Dudley and Hottinger on February 24 when he referred to counsel with statements such as “Maybe I ought to talk to a lawyer,” “Didn’t you say I had a right to a lawyer,” and “I need to talk to someone, a lawyer, a psychiatrist, someone.”1
In my opinion, when equivocal statements such as these are made, the most obvious and appropriate response is to ask the suspect, “Do you want a lawyer?”. The suspect’s response to this question should resolve the ambiguity and allow the interrogators to proceed accordingly. This test is easy to apply, consistent with Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny, and efficient in terms of police and court time. It provides a true bright-line rule which is fair to defendants and police alike.2
*262Under the rule adopted today, however, the constitutional right to an attorney cannot be invoked unless the defendant utilizes language which is clear, unambiguous, and únequivocal. This is a very demanding standard to place on the exercise of one’s constitutional rights, and I believe it has both practical and legal flaws.
The cornerstone of Miranda was to dispel the inherent coercion of custodial interrogations, and to allow a defendant to exercise his free will in asserting his constitutional privileges. A principal objective of this policy was to allow a defendant to request counsel “in any manner” and at any stage of the proceeding. Miranda, 384 U.S. at 444. The standard adopted by the majority today complies with neither the rationale, nor the language, of the Supreme Court.
In support of their standard, the majority cites one phrase from Edwards v. Arizona-, a phrase in which the Supreme Court declared that Miranda does not allow the police to continue a custodial interrogation if the defendant “has clearly asserted his right to counsel.” 451 U.S. at 485 (emphasis added). This phrase provides tenuous support at most for the majority’s position.
Edwards involved the waiver of a constitutional right, not the invocation of that right. There was no question as to whether or not the defendant wished to have an attorney present. Furthermore, in discussing the waiver issue, the Court noted that in some jurisdictions waiver was possible, “when the request for counsel is equivocal. Nash v. Estelle, 597 F.2d 513 (CA5 1979) (en banc). See Thompson v. Wainwright, 601 F.2d 768 (CA5 1979).” Edwards, 451 U.S. at 486, n.9.
When specifically addressing the invocation of counsel issue, the. Supreme Court did comment in Frazier v. Cupp, 394 U.S. 731, 738 (1969), that the statement, “I think I had better get a lawyer before I talk any more,” might be sufficient to invoke the defendant’s right to counsel under the “in any manner” language of Miranda, but fell short of the test under Escobedo v. Illinois, 379 U.S. 487 (1964), which controlled the case. Frazier, 394 U.S. at 738. Three years after Edwards, the Supreme Court in Smith v. *263Illinois, 469 U.S. 91 (1984), acknowledged that it had not established a standard for determining the consequences of an equivocal request for counsel, and determined that it need not resolve the issue in that case.
Based on these cases, one must take a step of significant proportions to maintain that the Court’s use of the phrase “clearly asserted” in Edwards, established or even supports the standard adopted by the majority today.
In addition to placing an improper burden on the defendant, the majority’s exacting test also places an unnecessary burden on the police officer. The intent of the defendant is now to be measured through the perspective of the interrogating officer, the very person who has a substantial interest in the fruits of the interrogation. What may seem clear and unequivocal to one police officer may appear ambiguous and equivocal to another. Furthermore, his judgment will continually be subject to review by the courts. •Courts, like police officers, may well arrive at divergent conclusions regarding the import of a suspect’s references to an attorney.3 The rule adopted by the Court today undercuts the rationale of Miranda and the preference expressed by the Supreme Court for establishing bright-line rules which will provide law enforcement officers with appropriate guides for responses to particular actions.
In my opinion, the record in this case supports a finding that Eaton intended to request counsel, but at a minimum, exemplifies the practical and legal dangers inherent in the majority’s rule requiring an unambiguous request for counsel.
Eaton, a functional illiterate with an I.Q. between 84 and 94, was interrogated on his release from the hospital after three days of treatment for a self-inflicted gunshot wound to the head. About an hour before the interrogation began, Officers Dudley and Hottinger met with two state troopers and the Commonwealth’s attorneys for the City of Salem and the County of Rockbridge. At this meeting, strategy for the interrogation of Eaton was discussed, including the fact that unrelated property charges pending in Rock*264ingham County had been nolle prossed earlier that morning, thereby releasing the attorney appointed for Eaton on those charges.4
At the beginning of the interrogation, Officer Dudley explained the Miranda warnings to Eaton, but no written explanation or waiver of rights was used. The interrogation was not tape recorded. The interview lasted approximately 45 minutes, during which time Sergeant Dudley testified, and his handwritten notes reflected, that Eaton made at least five references to an attorney including “Didn’t you say I had a right to an attorney?” and, on at least two occasions, that “he ought to talk to an attorney.”
After each reference to an attorney, the police officers reiterated that Eaton had a right to an attorney. Eaton remained silent. The police then reinitiated the interrogation with conversation concerning Eaton’s girlfriend Judy, who was being buried that day.
At one point, after Eaton said, “Maybe I’d better talk to a lawyer,” Sergeant Dudley left the room to confer with the Commonwealth’s attorney concerning the implications of Eaton’s reference to counsel. They decided to continue the interrogation and determine where they stood on the attorney question later. The interrogation finally concluded when Eaton again stated that he needed time to think.
On this record, Eaton’s continued waiver of his rights was brought into question when he began referring to his right to counsel. As Eaton continued to refer to counsel, albeit at times in an ambiguous manner, the reactions of the police evidenced their own concern over the consequences of Eaton’s statements. Yet, they took no affirmative action to remove the ambiguity and find out whether he wanted counsel. Rather, they orchestrated their actions in a manner which they believed would avoid the requirement of the presence of an attorney during the interrogation.
The rule adopted by the majority today encourages such activity, rather than encouraging police officers to determine in a straightforward manner the intent of persons in custodial interrogations regarding the exercise of their constitutional rights. That *265end could easily be met by a rule which requires simply asking the clarifying question, “Do you want a lawyer?”.
The majority’s holding that, under Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, cert. denied, 474 U.S. 888 (1985), Eaton’s statement inquiring about his right to an attorney was only a clarifying question and not a request for counsel, does not address the consequences of Eaton’s remaining references to counsel.
Detective Hottinger’s initial handwritten notes only referred to Eaton’s statement that he needed to talk to someone. Hottinger’s second, typewritten set of notes and his testimony at the suppression hearing state that Eaton referred to an attorney on two or three other occasions, but Hottinger did not recite the precise wording of those statements. Dudley’s notes state that Eaton said “he ought to talk to a lawyer,” “maybe I better talk to a lawyer,” and “maybe I ought to talk to a lawyer.” Although the evidence must be considered in the light most favorable to the Commonwealth, the evidence upon which the trial court relied must also be considered. Without identifying either Hottinger or Dudley by name, the court held that statements testified to by each, “Did you say 1 had a right to an attorney?”, and “I might ought to talk to an attorney,” were ambiguous and equivocal and, therefore, did not constitute a request for counsel.
This approach to determining whether the defendant intends to invoke his constitutional right has been adopted by a number of courts. See, e.g., Norman v. Ducharme, 871 F.2d 1483 (9th Cir. 1989); Owen v. Alabama, 849 F.2d 536, 539 (11th Cir. 1988); U.S. v. Gotay, 844 F.2d 971 (2d Cir. 1988); U.S. v. Fouche, 776 F.2d 1398 (9th Cir. 1985), cert. *262denied, 486 U.S. 1017 (1988); U.S. v. Cherry, 733 F.2d 1124 (5th Cir. 1984); Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979); Nash v. Estelle, 597 F.2d 513 (5th Cir. en banc), cert. denied, 444 U.S. 981 (1979); State v. Robinson, 427 N.W.2d 217 (Minn. 1988); State v. Moulds, 105 Idaho 880, 673 P.2d 1074 (1983); Cannady v. State, 427 So.2d 723 (Fla. 1983); State v. Robtoy, 98 Wash.2d 30, 653 P.2d 284 (1982); Daniel v. State, 644 P.2d 172 (Wyo. 1982).
Compare, for example, the holding of one circuit court in this Commonwealth that a defendant invoked his right to counsel when he stated that “he might want to talk to a lawyer,” Bunch v. Commonwealth, 225 Va. 423, 430, 304 S.E.2d 271, 275, cert. denied, 464 U.S. 977 (1983), with the conclusion of the trial court in this case that Eaton’s statement “Maybe he ought to talk to a lawyer” was equivocal and, therefore, did not invoke his Fifth Amendment right.
The trial court characterized these actions as ones which “smelled like three day old fish.”