McDaniel v. Commonwealth

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.

- 2 -
 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).

- 3 -
 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.

- 4 -
 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

- 5 -
"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.

- 6 -
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.

- 7 -
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

- 8 -
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.

- 9 -
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

- 10 -
 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.

- 11 -
 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

- 12 -
 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

- 13 -
 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."

- 14 -
 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

- 15 -
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.

- 16 -
 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,

- 17 -
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

- 18 -
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.

- 19 -