McDaniel v. Commonwealth , 28 Va. App. 432 ( 1998 )

BENTON, Judge.

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. For the reasons that follow, 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.

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. Long 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citing Miranda, 384 U.S. at 469-73, 86 S.Ct. 1602).

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, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, if the accused “expresses] 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, 101 S.Ct. 1880. Recently, the Supreme Court ruled that the test for determining whether the accused invoked the right to counsel is an objective one. Davis, 512 U.S. at 457-59, 114 S.Ct. 2350. 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, 114 S.Ct. 2350.

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.

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 “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. McDaniel clearly informed the detective that he desired to have an attorney speak for him. See State v. Jackson, 348 N.C. 52, 497 S.E.2d 409, 412 (1998) (ruling that the response “ T 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, 114 S.Ct. 2350.

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, 114 S.Ct. 2350 (“Maybe I should talk to a lawyer.”); Midkiff v. 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, 101 S.Ct. 1880. 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, 114 S.Ct. 2350. 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, 114 S.Ct. 2350 (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, 114 S.Ct. 2350 (emphasis added). The Court observed that the interrogation then ceased immediately. Id. While the issue whether Davis’ second sta rnient 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.