Opinion
Record No. 0266-09-3.
June 22, 2010, July 27, 2010.
Appeal from the Circuit Court of Pittsylvania County. Charles J. Strauss, Judge Circuit Court Nos. CR08000599-00 through CR08000607-00.
Upon a Petition for Rehearing En Banc.
Larry Gott for appellant.
Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty, Beales, Powell and Alston.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On July 6, 2010 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on June 22, 2010, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on June 22, 2010 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe Acrobat Portable Document Format (PDF).
The guidelines for the creation and submission of a digital brief package can be found at www.courts.state.va.us, in the Court of Appeals section under "Resources and Reference Materials."
Roger Lee Stevens (appellant) appeals from his jury trial convictions for robbery, conspiracy to commit robbery, malicious bodily injury, two counts of murder, and four counts of using a firearm in the commission of several of the felonies. On appeal, he contends the trial court erroneously denied his motion to suppress, based on its conclusion that the officers who questioned him did not violate his Fifth Amendment right to counsel. We hold, based on both the video recording of appellant's interrogation and the context in which it occurred, that appellant unambiguously invoked his right to counsel and that the trial court's denial of his motion to suppress the resulting confession was error. We also hold that error was not harmless. Thus, we reverse appellant's convictions and remand for a new trial if the Commonwealth be so advised.
I. A. FIFTH AMENDMENT RIGHT TO COUNSEL
The right under the Fifth Amendment of the United States Constitution "to have counsel present during a custodial interrogation is an axiom of American law expressed inMiranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)[,] and its progeny." Zektaw v. Commonwealth, 278 Va. 127, 135, 677 S.E.2d 49, 53 (2009). "[T]he United States Supreme Court [has] established that '[i]f the individual states . . . he wants an attorney, the interrogation must cease until an attorney is present,'" Commonwealth v. Ferguson, 278 Va. 118, 123, 677 S.E.2d 45, 48 (2009) (quotingMiranda, 384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723), or until "the suspect reinitiates the interrogation," Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d 579, 584 (2005) (citingDavis v. United States, 512 U.S. 452, 458, 114 S. Ct. 2350, 2354-55, 129 L. Ed. 2d 362, 370 (1994);Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)).See generally Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975) (holding police should "scrupulously" honor a request for counsel).
Determining whether a suspect actually invoked his right to counsel under the Fifth Amendment involves an objective inquiry.Davis, 512 U.S. at 458-59, 114 S. Ct. at 2355, 129 L. Ed. 2d at 371. To invoke this right, a suspect must state his desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for counsel. Id. If a suspect's reference to an attorney is either ambiguous or equivocal, such that a reasonable officer under the circumstances would only have understood that the suspect might be invoking his right to counsel, the officer is not required to stop questioning the suspect.Id. at 459, 461, 114 S. Ct. at 2355, 2356, 129 L. Ed. 2d at 371, 372-73. In the case of an ambiguous statement, an officer may ask questions "to clarify whether [the suspect] actually wants an attorney."Commonwealth v. Redmond, 264 Va. 321, 330, 568 S.E.2d 695, 700 (2002). However, where the request is clear, subsequent dialog is inappropriate, and "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. at 327, 568 S.E.2d at 698 (citing Smith v. Illinois, 469 U.S. 91, 97-98, 105 S. Ct. 490, 494, 83 L. Ed. 2d 488, 495 (1984) (per curiam)).
Whether a suspect invoked his right to counsel presents a mixed question of law and fact. Hilliard, 270 Va. at 49, 613 S.E.2d at 584. When an appellate court reviews a circuit court's determination on this issue on a motion to suppress, "the appellate court may review the circuit court's findings of fact only for clear error and must give deference to the inferences that may be drawn from those factual findings."Id. at 49-50, 613 S.E.2d at 584. "'[T]he determination of what [the defendant] actually said is a question of fact[,] . . . [but] [w]hether [the defendant's] words are sufficient to invoke the right to counsel is a legal determination that we review de novo.'" Redmond, 264 Va. at 327, 568 S.E.2d at 698 (quotingUnited States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)). Thus, where the parties "[do] not dispute the content of [a defendant's] statements to the police[,] . . . appellate consideration of the circuit court's denial of [the defendant's] motion to suppress is restricted to a de novo review of the legal issue of whether [the defendant's] words, taken in context, were sufficient to invoke his right to counsel." Hilliard, 270 Va. at 50, 613 S.E.2d at 584.
Here, because appellant's words as relevant to his invocation of counsel were video recorded, no dispute exists over the words and their immediate context. Thus, our deference to the trial court's findings of fact in this case applies only to the broader context of appellant's custodial status and questioning.
As the Commonwealth concedes, a suspect's statement, "That's what I want, a lawyer," uttered during a custodial interrogation, is more than sufficient, under ordinary circumstances, to constitute an invocation of the Fifth Amendment right to counsel.See, e.g., Ferguson, 278 Va. at 124, 677 S.E.2d at 48 (holding the defendant "unequivocally asserted" his right to counsel when, during a tape-recorded custodial interrogation, police told him he was being questioned about a breaking and entering offense and asked to search his car, and he responded, "Nah, I want a lawyer, you know what I'm saying?"). However, this case presents an added twist concerning the right to counsel under the Sixth Amendment. The Sixth Amendment provides that "once the adversary judicial process has been initiated, . . . a defendant [is guaranteed] the right to have counsel present at all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 556 U.S. ___, ___, 129 S. Ct. 2079, 2085, 173 L. Ed. 2d 955, 963 (2009). The Supreme Court has "pegged commencement [of this Sixth Amendment right] to 'the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Rothgery v. Gillespie County, 554 U.S. 191, ___, 128 S. Ct. 2578, 2584, 171 L. Ed. 2d 366, 374 (2008) (quotingUnited States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 154 (1984)). For Sixth Amendment purposes, "counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself." Id. at ___, 128 S. Ct. at 2591, 171 L. Ed. 2d at 382.
Although appellant does not claim his Sixth Amendment right to counsel was violated, that right is relevant insofar as the Commonwealth contends the context in which appellant made his comment about counsel rendered unclear to the officers whether appellant was invoking his Fifth Amendment right to counsel or merely referencing his separate Sixth Amendment right to have counsel in "future adversarial judicial criminal proceedings."
Appellant contends on brief that his Sixth Amendment right to counsel had already attached because he "had already been formally charged." The Commonwealth contends on brief it had not attached because appellant had not yet been arraigned. We do not address this issue because appellant does not allege his Sixth Amendment right to counsel was violated. Compare Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 541 (1994) (holding that arrest on a warrant did not constitute a formal charge for purposes of attachment of the Sixth Amendment right to counsel),with Rothgery, 554 U.S. at ___ n. 14, 128 S. Ct. at 2586-87 n. 14, 171 L. Ed. 2d at 377-78 n. 14 (excluding Virginia from its list of 43 states that "conform[] to the rule that the first formal proceeding is the point of attachment" and "take the first step toward appointing counsel 'before, at, or just after initial appearance'").
We hold an objective examination of appellant's statement in the full context in which it was made compels the conclusion, as a matter of law, that appellant unequivocally invoked his right to counsel under the Fifth Amendment and that the officers violated that right by failing immediately to cease questioning him. It is true that the evidence, viewed in the light most favorable to the Commonwealth, established that appellant had been brought to the courthouse for arraignment and "appoint[ment] [of]" "an attorney . . . under his Sixth Amendment rights" and that these things did not actually take place as scheduled that morning because the juvenile district court rather than the general district court was sitting. Nevertheless, the video-recorded exchange between appellant and the officers establishes that appellant asserted his right to an attorney in the context of the impending custodial interrogation and a review of his rights pursuant to Miranda. Although the record indicates some confusion regarding whether appellant initiated further discussion with the officers or whether it was the officers who sought to renew their interrogation of him, the record makes clear that the Wednesday afternoon session began with the following exchange:
Inv. Chaney: . . . [Y]our rights still apply. You still understand your rights?
Appellant: I have the right to remain silent.
Capt. Nicholson: Yeah.
Inv. Chaney: Everything that I read to you last night, do you still understand your rights?
Appellant: Mmm-hmm.
Inv. Chaney: You can have a lawyer present if you want one.
Appellant: I want, that's what I need. I want to know what's you know what I'm saying? Inv. Chaney: You can stop answering at any time.
Appellant: That's what I want, a lawyer, man.
As quoted above, when Investigator Chaney reminded appellant of his right to "have a lawyer present [for questioning] if [he] want[ed] one," appellant responded "[T]hat's what I need." When Investigator Chaney proceeded to tell appellant that he "[could] stop answering at any time," appellant remained focused on the right Chaney had previously recited, his right to have "a lawyer present," saying "That's what I want, a lawyer, man." As the United States and Virginia Supreme Courts have recognized, "[a] statement either asserts or fails to assert an accused's right to counsel," and "an accused's subsequent statements are not relevant to the question whether he invoked his right to counsel."Redmond, 264 Va. at 327, 568 S.E.2d at 698 (citingSmith, 469 U.S. at 97-98, 105 S. Ct. at 494, 83 L. Ed. 2d at 495) (emphasis added). Under the facts and circumstances of this case, we hold as a matter of law that appellant's statement constituted an unequivocal invocation of his right to have counsel present during the custodial interrogation and that the investigators violated his Fifth Amendment right to counsel by failing scrupulously to honor that request. In the face of the clear invocation of that right, the officers lacked authority to ask any clarifying questions.
In any event, the fact that appellant subsequently referenced his belief that he had been brought to court that day so that counsel could be appointed for him did not negate his prior statement that he wanted an attorney present for questioning. The fact that the clarifying questions had nothing to do with the charged crimes does not support the conclusion that no Fifth Amendment violation could have occurred. As the Supreme Court has observed, if a suspect invokes his right to have counsel present, thereby indicating his
"belie[f] that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of 'inherently compelling pressures' and not the purely voluntary choice of the suspect."
Zektaw, 278 Va. at 136, 677 S.E.2d at 53 (quotingArizona v. Roberson, 486 U.S. 675, 681, 108 S. Ct. 2093, 2097-98, 100 L. Ed. 2d 704, 713 (1988));see also Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 1180, 108 L. Ed. 2d 293, 302 (1990) (notingEdwards "established [a] . . . prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights"), quoted with approval in Montejo, 556 U.S. at ___, 129 S. Ct. at 2085, 173 L. Ed. 2d at 964.
To the extent the Commonwealth argues Investigator Chaney may have thought it was unlikely that appellant was invoking his Fifth Amendment right to counsel because he initiated the meeting, we hold any such inference was objectively unreasonable on the facts of this case, viewed in the light most favorable to the Commonwealth. Investigator Chaney's testimony, so viewed, indicates appellant had sent a message that morning that he wanted to talk to Investigator Chaney. When Chaney arrived at work and received the message, he went to see appellant in the district court holding cell, and appellant said he wanted to go home to see his infant son. Chaney told appellant he was being held for shooting into an occupied vehicle causing injury and that it would not be possible for him to go home, and they engaged in what Chaney described as additional "basic conversation." Investigator Chaney told appellant he would bring him over to talk further later in the day, but Chaney gave no indication that he did so because appellant expressed a desire to talk to him further or to discuss the crime for which he stood charged. Further, appellant indicated in the dialog at the beginning of the video recording that he was there because "Ya'll want to talk to me." When Investigator Chaney agreed they wanted to talk to appellant and inquired, "You want to talk to us?" appellant responded once again, "Ya'll want to talk to me."
Thus, the evidence, viewed in the light most favorable to the Commonwealth, indicates appellant unequivocally invoked his Fifth Amendment right to counsel, compelling the suppression of the statements he made when the investigators failed to cease their interrogation.
B. HARMLESS ERROR
The existence of error does not automatically compel a reversal of appellant's convictions. In all cases in which we determine error has occurred, "harmless-error review [is] required."Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990). Errors are presumed harmful, and the Commonwealth bears the burden of proving a constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967). Appellant avers the error was not harmless, and we agree.
We note the Commonwealth does not contend otherwise. It does not address the issue of harmlessness on brief.
In determining whether an error is harmless, we review "the record and the evidence and evaluate the effect the error may have had on how the finder of fact resolved the contested issues."Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 S.E.2d 910, 912 (1991) (en banc). "An error does not affect the verdict if we can determine, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same." Cairns v. Commonwealth, 40 Va. App. 271, 286, 579 S.E.2d 340, 347 (2003); see Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911.
"Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the [improperly admitted evidence] in the prosecution's case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [improperly admitted evidence] on material points, . . . and, of course, the overall strength of the prosecution's case."
Dearing v. Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000) (quotingDelaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686-87 (1986));see also Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000) (en banc) (noting in the context of constitutional error that "'harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis'" (quoting Hooker v. Commonwealth, 14 Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992))).
Here, appellant's erroneously admitted confession was the only evidence actually placing him at the scene of the robbery homicides. The only other evidence directly linking appellant to the crimes was the testimony of J'Raad Simpson, who said he acted as a middle man for the drug transaction. Simpson said he gave potential cocaine buyer April Wooten the number of a telephone on which he said appellant called him, but he did not give Wooten appellant's name. Wooten used the telephone number to set up the transaction that left her wounded and two of her three companions dead, apparently without ever learning the name of the person or persons with whom she spoke. Wooten did not testify at trial, and although her boyfriend, La'Tovia Johnson, took the stand, he testified he could not identify any of the three perpetrators of the crimes.
Simpson told police shortly after the shootings that the person whose telephone number he gave Wooten had the nickname "Roemello," and he claimed he did not know the person's real name and did not know him well. Simpson also failed to identify appellant in a photo array shown to him about ten days after the offenses. Not until over a year later did Simpson name appellant as the person with whom he put Wooten in touch to buy cocaine. Simpson, who had multiple prior felony convictions, did so only one day before he himself was scheduled to be tried for the instant robbery homicides and related crimes, which carried the risk that he could receive multiple life sentences. After Simpson named appellant as the person whose telephone number he gave Wooten, the Commonwealth allowed him to plead guilty to being an accessory before the fact, dismissed all other charges, and agreed to seek a sentence of no more than five years.
Without appellant's confession, the convictions depended almost entirely on Simpson's testimony that he had put Wooten in touch with appellant, who later made statements to Simpson implying he was at the scene. The only other evidence linking appellant to the scene comprised records for the cell phone found at the scene, believed by police to belong to a man named Marcus Davis. The records for Davis's phone showed a large number of calls between it and appellant's home phone between 3:00 a.m. and 9:15 p.m. on May 8, 2007, some of which were completed and some of which went to voicemail, and then three more calls from Davis's cell phone to appellant's home between 12:30 and 12:45 a.m. on May 9, 2007, the day of the robbery homicides. Thus, the record permitted the inference that Davis and someone at appellant's residence knew each other. The remaining evidence, however, failed to connect appellant to the drug transaction and robbery homicides. No evidence in the record shows any calls between appellant's home or cell phone and Simpson's or Wooten's phones. During the six-hour period prior to the shootings, with the exception of the three calls from Davis's phone to appellant's home around 12:30 a.m., which went directly to voicemail, the records show, instead, numerous calls between the phones of Simpson, Wooten, Davis, and a man named Jeremy Brandon. Police obtained DNA and fingerprints from appellant but were unable to tie him to Davis's phone, shell casings, or any other evidence at the scene.
Thus, appellant's confession was a critical part of the Commonwealth's evidence. We cannot conclude, without usurping the jury's fact finding function, that the jury would have convicted appellant on Simpson's testimony and the phone records alone, especially in light of Simpson's prior criminal record, his significant delay in identifying appellant as the person with whom he put Wooten in contact, and the fact that he avoided the risk of receiving multiple significant prison sentences as a result of his implicating appellant. Simpson's phone records show contact with Davis's and Brandon's phones and fail to corroborate Simpson's claim that he put Wooten in touch with appellant rather than Davis or Brandon. Thus, we cannot conclude beyond a reasonable doubt that the error in refusing to suppress appellant's confession was harmless.
II.
For these reasons, we hold that appellant unambiguously invoked his right to counsel and that the trial court's denial of his motion to suppress the resulting confession was error. We also hold that error was not harmless because we cannot conclude, without usurping the jury's fact finding function, that the jury would have found appellant guilty of the charged offenses. Thus, we reverse appellant's convictions and remand for a new trial if the Commonwealth be so advised.
Reversed and remanded.
Although I agree with the majority that Stevens' request for an attorney was unequivocal in content, I disagree with the majority that the "appellant unequivocally invoked his right to counsel under the Fifth Amendment."Supra at 5 (emphasis in original). Rather, I would hold that the full context of the invocation was ambiguous and the officers were justified in asking questions aimed at clarifying that ambiguity. I believe that the ambiguity appears not in the content or certainty of the invocation itself, but in the invocation's context. Thus, the officers had the right to clarify the ambiguity surrounding Stevens' request for an attorney. As a result, I would affirm the trial court's holding that Investigator Chaney did not violate the Fifth Amendment and that Stevens' statement was admissible as evidence against him.
Stevens clearly said, "[t]hat's what I want, a lawyer, man." This invocation equivocates neither in its content nor in its certainty. See Zektaw v. Commonwealth, 278 Va. 127, 136-37, 677 S.E.2d 49, 54 (2009) (collecting cases where the accused's statements were unclear, ambiguous, or equivocal because the suspect requested a non-lawyer, simply sought to clarify his rights, or merely expressed a reservation of the wisdom of continuing without the presence of a lawyer).
The Fifth Amendment guarantees that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court of the United States "established a number of prophylactic rights designed to counteract the 'inherently compelling pressures' of custodial interrogation, including the right to have counsel present" during a custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 176 (1991) (quoting Miranda, 384 U.S. at 467). In contrast, the Sixth Amendment guarantees "the right to counsel . . . [which attaches] at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty."Rothgery v. Gillespie County, 554 U.S. 191, ___ (2008).
The rule is not "mere formalism," but a recognition of the point at which "the government has committed itself to prosecute," "the adverse positions of government and defendant have solidified," and the accused "finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."
Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Thus, the Sixth Amendment "right to counsel exists to protect the accused during trial-type confrontations with the prosecutor. . . ." United States v. Gouveia, 467 U.S. 180, 190 (1984).
"To invoke the Sixth Amendment [right to counsel] is, as a matter of fact, not to invoke the [ Fifth Amendment right to counsel]."McNeil, 501 U.S. at 178. Thus, it is critical to our decision here whether Stevens' statement, "That's what I want, a lawyer, man" was an invocation of his Fifth Amendment right to counsel or his Sixth Amendment right to counsel. If he was invoking his Fifth Amendment right to counsel, then all questioning must cease unless "the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484 (1981). However, if Stevens was, in fact, invoking his Sixth Amendment right to counsel, then he would be entitled to no such protection because that right had not yet attached.
It is also important to note that the rule in Edwards "applies only when the suspect has expressed his wish for the particular sort of lawyerly assistance that is the subject ofMiranda." McNeil, 501 U.S. at 177. Thus,Miranda-Edwards "requires, at a minimum, some statement that can be reasonably construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." Id. (emphasis in original). An "ambiguous or equivocal reference to an attorney" requires police officers to speculate about the suspect's true intentions "with the threat of suppression if they guess wrong." Davis v. United States, 512 U.S. 452, 460-61 (1994). If the suspect's invocation, then, is ambiguous as to whether he wants an attorney for custodial interrogation or for representation at trial or a bond hearing, then the Edwards rule does not yet apply. In fact, "when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney," id. at 461 (emphasis added), for the purpose of dealing with custodial interrogation by the police,McNeil, 501 U.S. at 177.
While recognizing that the "full context" is relevant to whether Stevens' invocation was ambiguous, the majority gives short shrift to that context and, indeed, ignores a crucial portion of it. Considering Stevens' statement in context would also require us to consider the events leading up to his statements. Stevens had been arrested and interrogated the day before he gave his statements to the police. Before the first interrogation began, Stevens was advised of his rights under Miranda and he waived his right to remain silent and his right to counsel. Stevens never requested to speak with an attorney. The next morning Stevens was transferred to the courthouse holding cell for his arraignment. Because the general district court was not sitting that day, Stevens' arraignment was postponed. While Stevens was in the holding cell, he requested to speak with Investigator Chaney. Chaney spoke to Stevens that morning, and Stevens told Chaney that he wanted to go home to see his infant son. Chaney informed him that he could not go home because of the charges against him. However, Chaney told him that they would speak again that afternoon.
Later that afternoon, Chaney returned to speak to Stevens again. The complete dialogue among Stevens, Investigator Chaney, and Captain Nicholson appears as follows:
Chaney: You wanna, you want to talk to us some more? . . . Well reason we ask is cause we brought you back over that, this morning you asked for me, and we brought you back over here the reason I'm asking you is because your rights still apply. You still understand your rights?
Stevens: I have the right to remain silent.
Chaney: Everything that I read you last night, do you still understand your rights?
Stevens: Mm-hmm.
Chaney: You can have a lawyer present if you want one.
Stevens: I want, that's what I need. I want to know what's, you know what I'm saying?
Chaney: You can stop answering at any time.
Stevens: That's what I want, a lawyer, man.
Chaney: You do want a lawyer?
Stevens: I mean, that's what I thought they brought me up here for today.
Nicholson: Well they gonna appoint you a lawyer. I mean you gonna get a lawyer.
Chaney: The question is do you want a lawyer before you talk to us again or are you willing to talk to us?
Stevens: I mean I'll listen to ya but you already said if I could stop if I wanted.
Chaney: Stop answering at any time you want to.
Stevens: I'll listen to what you got to say. If you want — if I say something — if I feel I don't want to say no more ya'll done told me I can stop.
Nicholson: Yes sir.
Chaney: Stop anytime you want.
The majority concludes that the questioning should have ceased when Stevens said, "[t]hat's what I want, a lawyer, man." The majority reasons that the "immediate context" of Stevens' request for counsel was in response to the Miranda warnings. However,Miranda warnings do more than advise a suspect of his Fifth Amendment rights; they advise him of his Sixth Amendment right to counsel too. United States v. Muca, 945 F.2d 88, 89 (4th Cir. 1991) ("Miranda warnings would generally suffice to inform a defendant of his Sixth Amendment right to counsel." (citing Patterson v. Illinois, 487 U.S. 285, 293 (1988)). Thus, invoking the right to counsel after being informed of Miranda warnings could just as easily be a Sixth Amendment invocation as it could be a Fifth Amendment invocation.
In context, however, these statements suggested that Stevens expected an attorney would be appointed at the arraignment. Investigator Chaney, aware of the aborted arraignment, clarified that counsel would be appointed to represent Stevens and asked, "The question is, do you want a lawyer before you talk to us again or are you willing to talk to us?" Stevens' response to this request for clarification made clear that he wanted an attorney to represent him at trial and he was willing to continue his interview with police without the presence of counsel.
Considering the full context of Stevens' purported invocation, I would hold that his initial statement, "that's what I want, a lawyer, man" was ambiguous because of the unique context in which it was made. And, after Investigator Chaney asked the single clarifying question "do you want a lawyer before you talk to us again or are you willing to talk to us," Stevens made clear that he was not invoking his Fifth Amendment right to have counsel present during a custodial interrogation, but rather his Sixth Amendment right to have counsel present during all critical stages of the litigation. Because Stevens' Sixth Amendment right had not yet attached, his invocation was inadequate to warrant suppression under Miranda-Edwards.
Stevens did not provide the trial court with a transcript of his dialogue with Investigator Chaney and Captain Nicholson but he did introduce a video recording of it. Thus, the trial court based its decision not solely on a line-by-line analysis of the dialogue, but also on the full context of the meeting and the dialogue combined with the inflection, body language, and tone of Stevens, Chaney, and Nicholson during the relevant portions of the video.
Therefore, I would affirm.