For instance, the statement "I think I need an attorney" or "Maybe I should see an attorney" has been held both to be invocation of the right to counsel, People v. Cook, 665 P.2d 640, 643 (Colo.App. 1983); Wentela v. State, 95 Wis.2d 283, 292, 290 N.W.2d 312, 316 (1980), and insufficient to invoke the right to counsel, Cannady v. State, 427 So.2d 723, 728 (Fla. 1983); People v. Kendricks, 121 Ill. App.3d 442, 447, 77 Ill.Dec. 41, 44-45, 459 N.E.2d 1137, 1140-41 (1984). In the one case we have been able to find in which the accused asked "When can I get a lawyer," People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976), the court held that such a statement was a request for counsel, and that all interrogation should have ceased at that point. The court held that it is not necessary for an accused, especially one inexperienced in answering police interrogation, to "demand" counsel. It was enough that the police officers were placed on notice that the defendant intended to exercise his constitutional rights.
Although the inquiry into whether an accused requested counsel is objective, it may take into account the fact that suspects may not, due to their particular characteristics and the circumstances of the police interview, request an attorney "in the most sophisticated or legally proper form." People v. Harris, 191 Colo. 234, 237, 552 P.2d 10, 12 (1976) (in connection with his rights being read, the suspect asked, "When can I get a lawyer," to which the interrogating officer replied, "Monday morning."). For example, a person's youth, lack of sophistication, and nervous and upset condition may be considered among other pertinent circumstances in determining whether his or her statement reasonably could be construed as a request for counsel.
ΒΆ 10 In addition to Lynn's words, the trial court considered six factors in determining Lynn's request for counsel to have been unambiguous: (1) the request came during the Miranda advisement; (2) Lynn knew first degree assault charges were intended; (3) Lynn was in custody; (4) Lynn asked about his mother and wanted to speak with her; (5) Huston had reminded Lynn several times that he need not make a statement; and (6) Huston had at least twice described the assault as βbrutal.β ΒΆ 11 The words Lynn used were similar to those used by the defendant in People v. Harris, 191 Colo. 234, 235, 552 P.2d 10, 11 (1976), who asked, βWhen can I get a lawyer?β We affirmed the trial court's suppression order in that case, holding that the question constituted a βrequest for an attorneyβ which placed the police officers on notice that the defendant intended to exercise his constitutional rights.
In his ruling, the judge stated: "The officers here neatly foreclosed the possibility of the defendant talking to an attorney by their answer to his question of his need for an attorney. The fact that the defendant did not demand an attorney does not convince this court that he was not exercising his right. People v. Harris, 552 P.2d 12, 191 Colo. 234."
In determining whether an accused sufficiently invoked the right to counsel, we are mindful that many suspects, given their individual characteristics and the circumstances of the interrogation, may not "request an attorney `in the most sophisticated or legally proper form.'" Romero, 953 P.2d at 554 (quoting People v. Harris, 191 Colo. 234, 237, 552 P.2d 10, 12 (1976)). Because suspects "may not be legally sophisticated or paragons of clarity in their use of language," id. at 554-55, the Supreme Court in Davis observed that a suspect need not "speak with the discrimination of an Oxford don."
This question is one that has been dealt with comprehensively by other courts. For example, in People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976) the accused inquired, "When can I get a lawyer?" and the police responded that he could get one on Monday since it was a Saturday when the defendant was being questioned.
The trial court's finding that Olson did not tell Giacomazzi that no attorney would be available for some time indicates that Giacomazzi did not believe an assertion of his right to have counsel present would be futile. Compare People v. Harris, 552 P.2d 10, 11 (Colo. 1976) (police told suspect that no attorney would be available for two days, waiver held invalid). Our prior decisions have stressed the importance of informing a suspect that he or she has the right to have counsel present at the time of any questioning.
While the language of Miranda is strictly enforced to prohibit any questioning of an accused once counsel has been requested, decisions since Miranda have made it clear that the accused can later voluntarily waive the previously invoked right to counsel. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976); United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Hodge, 487 F.2d 945 (5th Cir. 1973); State v. Greene, 91 N.M. 207, 572 P.2d 935 (1977); and People v. Harris, Colo., 552 P.2d 10 (1976). This waiver need not be in any certain form. It can be written or oral, express or implied. Klingler v. United States, 409 F.2d 299 (8th Cir. 1969); Pierce v. Cardwell, 572 F.2d 1339 (9th Cir. 1978); People v. Harris, supra. Whether such a waiver has indeed been made is a question of federal constitutional law.
Because Gay's question was not an unambiguous invocation of his Miranda right to counsel, police did not violate that right by continuing questioning him to clarify whether he wished to invoke his rights. ΒΆ 34 Gay cites People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976), and State v. Inman, 151 Ariz. 413, 728 P.2d 283 (App. 1986), in support of his argument that his question was an unambiguous invocation of his Miranda right to counsel. In Harris, the Colorado Supreme Court held that the question, "When can I get a lawyer?"
Id., at 299-300.See, e. g., Thompson v. Wainwright, 601 F.2d 768 (CA5 1979); United States v. Massey, 550 F.2d 300, 307-308 (CA5 1977); United States v. Womack, 542 F.2d 1047, 1050-1051 (CA9 1976); United States v. Clark, 499 F.2d 802, 807 (CA4 1974); United States v. Crisp, 435 F.2d 354, 357 (CA7 1970); United States v. Priest, 409 F.2d 491 (CA5 1969); Moore v. State, 261 Ark. 274, 278, 551 S.W.2d 185, 187 (1977); Webb v. State, 258 Ark. 95, 522 S.W.2d 406 (1975); Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967); People v. Brake, 191 Colo. 390, 397-399, 553 P.2d 763, 770 (1976); People v. Harris, 191 Colo. 234, 552 P.2d 10 (1976); People v. Salazar, 189 Colo. 429, 433-434, 541 P.2d 676, 680 (1975); People v. Medina, 71 Ill.2d 254, 260-261, 375 N.E.2d 78, 80 (1978); People v. Cook, 78 Ill. App.3d 695, 697-698, 397 N.E.2d 439, 441 (1979); Stevens v. State, 265 Ind. 396, 404, 354 N.E.2d 727, 733 (1976); Pirtle v. State, 263 Ind. 16, 23-25, 323 N.E.2d 634, 637-639 (1975); State v. Boone, 220 Kan. 758, 767-768, 556 P.2d 864, 873 (1976); State v. Crisler, 285 N.W.2d 679 (Minn. 1979); Murphy v. State, 336 So.2d 213 (Miss.