Opinion
Record No. 0394-02-2.
January 6, 2004.
Appeal from the Circuit Court of the City of Richmond, Thomas N. Nance, Judge.
Steven D. Benjamin (Betty Layne DesPortes; Benjamin DesPortes, P.C., on briefs), for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Clements and Senior Judge Willis.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Curtis Darnell Hilliard was convicted in a jury trial of murder, in violation of Code § 18.2-32, use of a firearm in the commission of murder, in violation of Code § 18.2-53.1, maliciously shooting into an occupied vehicle, in violation of Code § 18.2-154, and discharging a firearm on or within 1000 feet of school property, in violation of Code § 18.2-280(B). On appeal, he contends the trial court erred (1) in denying his motion to suppress the inculpatory statements illegally obtained from him by the police after he had invoked his right to an attorney; (2) in giving a coercive Allen charge to the jury during the guilt phase of the trial; and (3) in failing to properly respond to questions from the jury during the sentencing phase of the trial on the presumption of consecutive sentences and the possibility of geriatric release. For the reasons that follow, we affirm the convictions.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
I. MOTION TO SUPPRESS
On appeal from a trial court's denial of a motion to suppress, the burden is on the appellant to show that the denial of the motion constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). In reviewing such a denial, we consider the evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from the evidence. E.g., Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Here, the facts pertinent to the motion to suppress are undisputed. On July 7, 1999, the victim, Anthony Robinson, Jr., was shot and killed in Richmond, Virginia. Hilliard was indicted for Robinson's murder on September 13, 1999, and arrested on September 15, 1999. Richmond City Police Detectives White and Kochell interviewed him the next day. The videotape of that interview was the sole evidence presented at the suppression hearing.
The videotape reveals that, at the beginning of the interview, Detective Kochell advised Hilliard of his rights under Miranda v. Arizona, 384 U.S. 436, 469-73 (1966), and asked him to sign a waiver form indicating he understood his rights and wished to speak to the detectives. Before signing the form, Hilliard asked the detectives, "Can I have somebody else present too, I mean just for my safety, like a lawyer, like y'all just said, or something?" Detective White responded, "That's up to you. Like [Detective Kochell] said, all we're doing today is just trying to get your side of the story. That's all we're trying to do." Hilliard replied, "But I'm trying to tell you, I don't have a side. I don't." Detective White then explained to Hilliard that they could not continue to speak with him unless he signed the form. Hilliard then signed the waiver form, and the detectives continued the interview.
A few minutes later, after being asked how he knew the victim and being told by the detectives to be honest, Hilliard stated:
I understand what both of you all are saying wholeheartedly. I need to say that . . . I'm not saying that I know anything. I'm not saying that I know the person. You know what I'm saying? The only thing, . . . like I said, I would like to have somebody else in here because I may say something I don't even know what I am saying, and it might fuck me up, might jam me up in some incidents, and I don't want that to happen, man.
Detective Kochell replied, "We're not here trying to jam you up. Okay?" Kochell then explained to Hilliard that the interview was not going to be conducted in the harsh manner that such interviews were often depicted on television. Hilliard then continued his conversation with the detectives.
Approximately an hour into the interview, Detective White told Hilliard he wanted to know "what happened and why" and wanted Hilliard to tell his "side of the story." The following exchange then occurred:
HILLIARD: Can I get a lawyer in here?
DETECTIVE WHITE: Do you want to do that?
HILLIARD: I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up. And I'll tell you everything that I know. This is my word.
DETECTIVE WHITE: Okay. That's fine.
DETECTIVE KOCHELL: That's fine.
HILLIARD: I'm not saying that I will say anything other or just because he's in here. I just want to, you know, make sure I have . . . I'd feel a little bit more comfortable.
DETECTIVE KOCHELL: That's not a problem. We tried to provide you with a comfortable atmosphere here. And, like I said, it's not the stuff that you see on TV dealing with Sipowicz, where he takes a guy and throws him up on the wall. That's not what we're about.
HILLIARD: I will say, I will go as far as to say this. Probably what you all got in that book ain't nowhere near.
DETECTIVE WHITE: Talking about what?
HILLIARD: I'm just saying, what you all probably have in that book, I doubt that it's anywhere near it.
DETECTIVE WHITE: Anywhere near . . . of what we know of why it happened?
HILLIARD: Yeah.
DETECTIVE WHITE: Well, that's why we want to hear from you, because we know there's a bigger picture there. Okay? You know what the problem is, Curtis, is that you got caught up in it.
HILLIARD: Yeah, I did. I was there. I'm going to just say that, I was there. But before I say anything else, I mean, I already talked to you before we go to court.
Shortly later, Detective White told Hilliard:
And like you said, we've got plenty of time to sit down and talk like this again with your attorney here, okay, because that's what you've expressed. And you've told us that you were there and there's a bigger picture that you'd like to go over it with your attorney and then explain it to us, okay, and that's where we'll leave it.
The interview ended a few minutes later.
At the suppression hearing, Hilliard argued that he made three requests for the assistance of an attorney, but the police ignored each request and continued the interrogation. The trial court denied the motion to suppress, finding that Hilliard's questions and statements referencing an attorney were "equivocated" and that, "even if he invoked his right to a lawyer immediately prior to the statement," Hilliard's admission that he was at the scene of the crime "was purely voluntary, was not as the result of any continuing interrogation or response to a question."
On appeal, Hilliard contends, as he did below, that he made three requests for the assistance of an attorney during his interrogation by police. He argues that his clear invocation of his Fifth Amendment right to counsel mandated the immediate end of police questioning and the suppression of incriminating statements he thereafter gave to police. We disagree with Hilliard's premise.
Hilliard does not argue on appeal that his incriminating statements were involuntary. Rather, he argues solely that the detectives should have ceased the interrogation because each of his three requests for counsel constituted a clear and unequivocal invocation of his Fifth Amendment right to counsel.
Hilliard also argues on appeal that, because he had already been indicted when the detectives improperly interrogated him, his Sixth Amendment right to counsel was violated as well. Our review of the record reveals, however, that Hilliard did not make this argument to the trial court. Thus, we will not consider it for the first time on appeal. See Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (holding that we will not address an issue, even a constitutional claim, raised for the first time on appeal); Rule 5A:18.
An accused who is "subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning."Davis v. United States, 512 U.S. 452, 457 (1994) (citing Miranda, 384 U.S. at 469-73). Moreover, "the police must explain this right to [the accused] before questioning begins." Id. If the accused "effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to interrogate him." Id. at 458. However, if the accused "requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Id.
"[T]he test for determining whether the accused invoked the right to counsel is an objective one." McDaniel v. Commonwealth, 30 Va. App. 602, 605, 518 S.E.2d 851, 853 (1999) ( en banc). "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. (quoting Davis, 512 U.S. at 459). Only if the accused "clearly request[ed] an attorney" would the interviewing officers be required to stop questioning him. Davis, 512 U.S. at 461.
As the United States Supreme Court explained in Davis:
Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. [171, 178 (1991)]. 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.512 U.S. at 459. The Supreme Court further explained in Davis, that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether he actually wants an attorney." Id. at 461. The Court added, however: "But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 461-62.
The issue of whether an accused "clearly requested an attorney during a custodial interrogation is a mixed question of law and fact."Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d 695, 697 (2002) (plurality opinion). "'[T]he determination of what [the accused] actually said is a question of fact that we review only for clear error. Whether those words are sufficient to invoke the right to counsel is a legal determination that we review de novo.'" Id. at 327, 568 S.E.2d at 698 (quoting United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993) (citation omitted)).
Moreover, "an accused's subsequent statements are not relevant to the question whether he invoked his right to counsel. A statement either asserts or fails to assert an accused's right to counsel." Id.
In Davis, the suspect, after waiving his right to counsel, was interviewed by investigators regarding his involvement in a murder. During the interview, the suspect stated, "Maybe I should talk to a lawyer." 512 U.S. at 455. The investigators did not stop the interview at that point. Id. The United States Supreme Court held that the suspect's statement "was not a request for counsel." Id. at 462.
In Redmond, the accused, after waiving his Miranda right to counsel, was questioned by the police regarding the circumstances of a murder for which he had been arrested. 264 Va. at 324-25, 568 S.E.2d at 696-97. During the interrogation, the accused asked, "Can I speak to my lawyer? I can't even talk to [a] lawyer before I make any kinds of comments or anything?" Id. at 325, 568 S.E.2d at 697. The officers conducting the interrogation did not discontinue their questioning of the accused at that point. Id. Finding that the accused's questions "were not a clear and unambiguous assertion of his right to counsel," a plurality of the Supreme Court of Virginia held that the accused "failed to make a clear and unambiguous assertion of his right to counsel." Id. at 330, 568 S.E.2d at 700. In reaching that decision, the plurality of the Court applied the "substantive principles articulated by the [United States] Supreme Court," as well as its own precedent, about which it stated as follows:
Prior to the Supreme Court's decision in Davis, this Court consistently held that a clear and unambiguous assertion of the right to counsel is necessary to invoke the rule [requiring the police to cease an interrogation when the accused requests counsel]. See Mueller v. Commonwealth, 244 Va. 386, 396, 422 S.E.2d 380, 387 (1992) (defendant's question "Do you think I need an attorney here?" not a clear assertion of right to counsel), cert. denied, 507 U.S. 1043 (1993); Eaton v. Commonwealth, 240 Va. 236, 250, 252-54, 397 S.E.2d 385, 393, 395-96 (1990) (defendant's question "You did say I could have an attorney if I wanted one?" not a clear assertion of right to an attorney), cert. denied, 502 U.S. 824 (1991); Poyner v. Commonwealth, 229 Va. 401, 410, 329 S.E.2d 815, 823 (defendant's question "Didn't you say I have the right to an attorney?" not a clear assertion of right to counsel), cert. denied, 474 U.S. 865 (1985). And, this Court applied Davis in Midkiff v. Commonwealth, 250 Va. 262, 266-67, 462 S.E.2d 112, 115 (1995) (defendant's statement "I'll be honest with you, I'm scared to say anything without talking to a lawyer" not a clear assertion of right to counsel).
Redmond, 264 Va. at 329-30, 568 S.E.2d at 699-700.
In McDaniel, by contrast, we held that the accused's response after being advised of his Miranda rights, "I think I would rather have an attorney here to speak for me," was an unequivocal request for counsel. 30 Va. App. at 606, 518 S.E.2d at 853. We found that the accused "made his choice clear, informing the detective that he desired to have an attorney speak for him." Id.
Applying these cases and the principles stated therein to the facts and circumstances of this case, we conclude that Hilliard did not clearly request an attorney during the custodial interrogation because none of his questions and statements referencing an attorney constituted an unequivocal invocation of his right to counsel.
In the first instance, after being advised of his Miranda rights, Hilliard asked, "Can I have somebody else present too, I mean just for my safety, like a lawyer, like you all just said, or something?" Uncertain about Hilliard's response, one of the detectives replied, "That's up to you." When told by the detectives that they could not talk to him unless he signed the waiver form, Hilliard signed the form, agreeing to speak to the detectives without a lawyer being present. Thus, Hilliard's question was, at most, an inquiry designed to elicit clarification from the detectives regarding the rights he had just been read, not an unequivocal request for an attorney. See Redmond, 264 Va. at 330, 568 S.E.2d at 700 (noting that the accused's questions, "Can I speak to my lawyer? I can't even talk to [a] lawyer before I make any kinds of comments or anything?" may, at best, "be construed as a desire on his part to obtain more information about his Miranda rights," rather than as a clear request for counsel).
Soon thereafter, Hilliard stated, "[L]ike I said, I would like to have somebody else in here because I may say something I don't even know what I am saying, and it might . . . jam me up. . . ." (Emphasis added.) Although Hilliard's statement "expresses his reservation about the wisdom of continuing the interrogation without" someone there to assist him, "it does not clearly and unambiguously communicate a desire to invoke his right to counsel." Midkiff, 250 Va. at 267, 462 S.E.2d at 115. Thus, it was not a clear request for counsel.
Approximately an hour later, Hilliard asked, "Can I get a lawyer in here?" Concerned that Hilliard's question might be a request for an attorney, one of the detectives sought clarification, asking, "Do you want to do that?" Instead of answering the question, however, Hilliard stated, "I already have a lawyer," and again expressed his concern about "jam[ming] [him]self up," adding that he would "feel a little bit more comfortable" with the interview. When the detectives told Hilliard they had tried to make the circumstances comfortable, Hilliard answered that they probably had the facts wrong and acknowledged that he was at the scene of the crime.
As was the case with Hilliard's first question referencing a lawyer, his question, "Can I get a lawyer in here?" was also not an unequivocal request for an attorney. See Redmond, 264 Va. at 330, 568 S.E.2d at 700. Likewise, his subsequent responses to the detective's clarifying question did not unambiguously indicate that he wanted a lawyer present and that he did not wish to continue the interrogation without one. Indeed, to the contrary, Hilliard continued talking to the detectives even though they were not questioning him.
We hold, therefore, "that a reasonable police officer, in light of the circumstances surrounding [Hilliard's statements and] questions [referencing an attorney], would have concluded that [Hilliard] did not invoke his right to counsel during the custodial interrogation." Id. Accordingly, the trial court did not err in not suppressing Hilliard's admission that he was at the scene of the crime.
II. ALLEN CHARGE
On February 29, 2000, during deliberations at the end of the first day of the trial, the jury foreperson sent a note to the trial judge saying, "We are split 10-2. We can't reach a unanimous decision." The trial judge released the jurors until the following day and told the attorneys to "decide in the meantime if you want me to give them the Allen charge."
The next morning, the trial judge asked the attorneys, "Have you all discussed whether or not you want to give them the Allen charge or just continue?" Hilliard's attorney told the trial judge he did not want the court to give the Allen charge. The trial judge responded, "I will just tell them to start again, reread the evidence, don't speculate; go over the evidence and talk to each other." Neither party objected to the trial court's suggestion. Thereafter, the jury returned to the courtroom and the trial judge made the following remarks to the jury:
Good morning. Seems like we just left. You know, we all know what kind of job you all are assigned here, and it's a very difficult thing. We can't go out and get twelve better people to do this job than you all; you can do this job. You have a duty to listen to each other and you have a duty to follow the law and not speculate. But what I want you to do is to go back, try to start fresh with the instructions, take your time, go through these things and the facts and talk to each other about it. You can reach a decision in this case. So you all go back and take your time. I think they will get you some coffee and if you need a Coke or something — whatever you need, let them know; they will be glad to accommodate you. Thank you. Continue your deliberations.
Hilliard made no objection to the trial court's remarks.
Thereafter, at sentencing on April 21, 2000, Hilliard made a motion to set aside the verdict, arguing that, although the trial court's statement to the jury was "not the same as the Allen charge, . . . it [was] very similar, and that this comment by the Court improperly interfered with the jury's deliberation." The trial court denied the motion.
On appeal, Hilliard contends the trial court's comments "suggested that the jury would be kept until unanimity was reached" and amounted to a coercive Allen charge that, in effect, instructed the two jurors in the minority to change their votes. Thus, Hilliard concludes, the comments were improper.
The Commonwealth contends that Rule 5A:18 bars our consideration of this issue because Hilliard made no contemporaneous objection to the judge's remarks. We agree with the Commonwealth.
In applying Rule 5A:18, we have held that,
[w]here an accused alleges that the trial court has made improper remarks in the presence of the jury but fails contemporaneously to object, request a cautionary instruction or move for a mistrial, he waives the right to challenge those remarks on appeal. "A motion for a mistrial is untimely and properly refused when it is made after the jury has retired."
Humbert v. Commonwealth, 29 Va. App. 783, 791, 514 S.E.2d 804, 808 (1999) (citations omitted) (quoting Cheng v. Commonwealth, 240 Va. 26, 39, 393 S.E.2d 599, 606 (1990)).
In this case, Hilliard made no contemporaneous objection to the trial court's remarks. While he initially objected to the giving of an Allen charge, once the trial court stated its intentions and gave its remarks, Hilliard did not contemporaneously object. Indeed, he did nothing before the jury retired to apprise the trial court that the remarks were erroneous or improper in any way. He neither requested a cautionary instruction nor moved for a mistrial. It was not until sentencing, several weeks later, that he moved to have the verdict set aside. The issue, therefore, was not properly preserved.
Consequently, this claim is procedurally barred. Moreover, our review of the record in this case does not reveal any reason to invoke the "good cause" or "ends of justice" exceptions to Rule 5A:18.
III. SENTENCING INSTRUCTION
After the jury returned verdicts of guilty, the trial court prepared to instruct the jury with respect to sentencing. The trial court asked Hilliard, "Do you want anything about parole in Virginia or not?" Initially, Hilliard's attorney stated, "I think you should say there is no parole." However, after further discussion with the trial judge and consultation with Hilliard, Hilliard's attorney decided not to ask for an instruction regarding parole.
During deliberations, the jury submitted three written questions to the trial court:
1. Do the sentences run concurrently?
2. Will he get credit for times served?
3. When will he be eligible for parole?
In the ensuing discussion about how to respond to the jury's questions, Hilliard's attorney asked the trial court to tell the jury that "there is no parole" and that the sentences would "run consecutively." The trial court responded: "It may not run consecutive. It could run concurrent. That's not for them to decide and credit for time served. I don't mind telling them he gets credit for time served. I don't mind telling them as far as they're concerned, there is personally no parole." Hilliard made no objection to the court's decision. Instead, his attorney solely asked, "Just the parole issue?" to which the trial court responded, "All right. Bring [the jury] back."
Before the jury returned, however, the Commonwealth sought further clarification of how the trial court was intending to respond to the jury's questions. In reply to the Commonwealth's query, the trial court stated:
Well, they say when will he be eligible for parole and that sort of bothers me because he may be eligible when he's seventy or when he's sixty, or whatever it is, and then you get into that's not a true — as far as a jury is concerned, there is no parole in Virginia. But in this situation, they want to know when he will be eligible.
The Commonwealth then asked the trial court not to answer the parole question. Hilliard's attorney again asked that the jury be told "that there is no parole." The trial court then instructed the jury as follows:
Ms. Bowles I got your question and I have talked it over with the lawyers and pretty generally, it's — I am to explain to you that your function at this time is to listen, take the evidence and the law and what you've heard and decide on a proper punishment in each of these cases. That's what you do. You're not to concern yourself with what may happen afterward. You set an appropriate punishment in each of these cases. That's your job. I will tell you that other than some exceptional circumstances, parole in Virginia was abolished several years ago and that's all I'm allowed to tell you.
Hilliard did not object to the instruction given.
On appeal, Hilliard argues the trial court failed to properly instruct the jury that multiple sentences are presumptively consecutive. He also argues that the trial court failed to properly instruct the jury on the possibility of parole, specifically the singular circumstance of geriatric release.
The Commonwealth argues that Hilliard's claims are procedurally barred under Rule 5A:18 because he did not object to the instruction the trial court gave in response to the jury's questions concerning parole and the concurrency of the sentences. Again we agree with the Commonwealth.
Although Hilliard initially asked the trial court to answer the jury's questions by instructing the jury that multiple sentences are presumptively consecutive, he made no contemporaneous objection to the trial court's reasoning and ruling to the contrary or to the court's instruction in response to the jury's question regarding the concurrency of the sentences. Likewise, Hilliard made no contemporaneous objection to the court's instruction with respect to the issue of parole. Thus, we will not consider these "challenges to jury instructions raised for the first time on appeal." Commonwealth v. Jerman, 263 Va. 88, 93-94, 556 S.E.2d 754, 757-58 (2002) (holding that defendant "was required to state any objection to the circuit court's instruction and to ask the court for any other instruction on the subject that he deemed necessary" and his failure to timely do so "bars his present challenge to that instruction"); see also Cherrix v. Commonwealth, 257 Va. 292, 311, 513 S.E.2d 642, 654 (1999) (holding that defendant's "failure to proffer a parole eligibility instruction and his failure to object to the trial court's instruction in response to the jury's inquiry . . . precludes us from addressing the merits of this assignment of error"); Rule 5A:18.
Accordingly, we affirm Hilliard's convictions.
Affirmed.
Under the standard announced by the Supreme Court, Curtis Darnell Hilliard asserted his Fifth Amendment right to counsel.
[C]ourts [are required] 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 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.
Rather, the suspect must unambiguously request counsel. As we have observed, "a statement either is such an assertion of the right to counsel or it is not." Although a suspect need not "speak with the discrimination of an Oxford don," he 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.
Davis v. United States, 512 U.S. 452, 458-59 (1994) (citations omitted).
The detectives began the interrogation by telling Hilliard they were there to "get some things straight" and to "hear what [Hilliard] had to say." After a detective told Hilliard he had to read a form to him that must be read to every person before an interview, he read the Miranda warnings to Hilliard. He asked Hilliard to sign the form acknowledging that the warnings were read to him and then sign again indicating the detectives could talk to him. Before Hilliard signed the form, he made the first of three requests for a lawyer. Hilliard said, "Can I have somebody else present too, I mean just for my safety, like a lawyer like y'all just said?" One of the detectives responded that they were just trying to get his side of the story and said they could talk after he signed the form. When Hilliard signed the form, the detectives continued the interrogation. Hilliard then said, "Like I said, I would like to have somebody else in here." The interrogation continued.
During lengthy dialogues, the detectives told Hilliard that more than two people identified him as the killer and said they had sufficient evidence to convict him but wanted to know his side of the story. Hilliard denied being involved in the killing. As the detectives showed him a diagram of the location of the murder and continued to interrogate him, Hilliard said, "Can I get a lawyer in here?" Although Hilliard expressed discomfort with continuing the interrogation without assistance, the detectives failed to honor his requests.
Hilliard's statements were "appropriate response[s] to the warnings, which gave [him] the choice of speaking with the detective without an attorney or having an attorney present while the detective questioned him." McDaniel v. Commonwealth, 30 Va. App. 602, 606, 518 S.E.2d 851, 853 (1999). To deny that Hilliard's "'statement[s] . . . can reasonably be construed to be an expression of a desire for the assistance of an attorney,'" Davis, 512 U.S. at 459, is to disadvantage Hilliard because of his lack of linguistic skills and to impose upon him the very requirement that the Supreme Court has expressly rejected — that he "need not 'speak with the discrimination of an Oxford don.'" Id. at 459 (citation omitted).
For these reasons, I would hold that the trial judge erred in denying the motion to suppress the statement and I would reverse the convictions and remand for a new trial.