Invoking the Right to Counsel: The Supreme Court and Virginia Cases
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: firstname.lastname@example.org
In a recent Louisiana case, Warren Demesme was arrested for raping a juvenile. During his interrogation, Demesme told the detectives who were questioning him, “This is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog ’cause this is not what’s up.” The punctuation of Demesme’s request was critical. It is commonly understood that “dog” is a colloquial term for “person,” akin to calling someone “dude.” Accepting that understanding of “dog” would suggest that in the quote above there should have been a comma after “lawyer.”
However, the court reporter in Demesme’s case did not see it that way, and the comma was omitted. The Louisiana Supreme Court agreed, ruling that Demesme’s statement would not be interpreted as a request for an attorney. (This raises the fascinating question of just what Demesme was asking for, then. A “lawyer dog”?) Although the court did not publish an opinion explaining the basis for its ruling, one of the justices on the court, Scott Crichton, issued a brief concurring opinion. Crichton indicated that “In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”
Although the Louisiana Supreme Court’s apparent inability to understand modern slang may come across as somewhat humorous, it had significant consequences for Demesme. It meant that his admission of the sexual assault to the police was used to convict him of that crime. The case raises the larger question of what a suspect must do to invoke his constitutional right to counsel as part of the interrogation process. This article examines what the U.S. Supreme Court and Virginia appellate courts have had to say about this question.
U.S. Supreme Court Cases on Invoking the Right to Counsel
The U.S. Supreme Court held in Miranda v. Arizona that if the police want to use a statement obtained during custodial interrogation of a person, they must advise the suspect of certain rights (and obtain a voluntary waiver of those rights). One of those rights is the right to consult with an attorney and have the attorney present during questioning. The Court has addressed the issue of what a suspect must do to invoke this right to counsel. In Smith v. Illinois, when Smith was advised that he had a right to consult an attorney and was asked if he understood that right, he replied, “Uh, yeah. I’d like to do that.” The police officer conducting the interrogation responded by asking Smith if he wanted to talk to him at this time without a lawyer present. Smith replied, “Yeah and no, uh, I don’t know what’s what, really.” The officer replied, “You either have to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to.” Smith agreed to talk to the officer and subsequently made incriminating statements.
When this short dialogue is read in its entirety, it appears that Smith was a bit uncertain as to whether to continue the interrogation or to stop the interrogation to consult with an attorney.[SO1] However, the Supreme Court indicated that the uncertainty arose only because the officer failed to honor Smith’s clearly expressed desire for counsel, when he stated “I’d like to do that.” The Supreme Court was unwilling to examine Smith’s comments after he made a statement that constituted a clear desire for counsel.
Ten years later in Davis v. U.S., the Court seemed to retreat somewhat from the rather firm approach to invoking the right to counsel that it had taken in Smith. In Davis, military investigators were questioning Davis about the murder of a sailor. After the interrogation had gone on for well over an hour, Davis said, “Maybe I should talk to a lawyer.” Even Davis’ attorneys conceded that this statement was not a clear, unambiguous request for an attorney. Nevertheless, they argued that when a suspect makes a statement that reasonably could be interpreted as a request for an attorney, the interrogation must cease, and the failure to stop the interrogation makes any statement made thereafter inadmissible.
There were at least two other approaches that could have been taken to this situation. One approach would require the police to seek clarification from a suspect when he makes a statement that reasonably could be viewed as a request for counsel. In fact, that is what the investigators did in this case. (In response to the investigators’ inquiries, Davis made it clear that he was willing to continue the interview without counsel).
Another approach would permit the police to continue the interrogation without seeking clarification from the suspect unless and until he makes a clear, unequivocal request for an attorney. Four Justices favored the “seek clarification” approach above. However, the majority of the Court adopted the latter no-need-to-seek-clarification approach. They expressed concern that the “seek clarification” approach would put the police in the difficult position of having to determine when a suspect has made a statement that should be viewed as an ambiguous request for counsel. (Arguably, the rule the Court adopted puts the police in the equally difficult position of determining whether a suspect has made an unambiguous request for an attorney).
Thus, the rule is that the police do not have to discontinue an interrogation if a suspect makes an ambiguous statement about desiring counsel, nor do they have to seek clarification of the suspect’s desires. The result is a rule that clearly disadvantages defendants whose personalities make them less prone to speaking emphatically and assertively. People with such personalities may want counsel but are inclined to state their desire in the form of a less assertive question.
Virginia Cases on Invoking the Right to Counsel
Virginia appellate courts have decided several cases dealing with the question of whether a suspect clearly and unambiguously invoked his right to counsel. In most cases, the court has concluded that the defendant failed to clearly request counsel. For example, suspects who made the following statements were found not to have made a clear, unequivocal request for an attorney: 1) “Do you think I need an attorney here?”; 2) “I’ll be honest with you, I’m scared to say anything without talking to a lawyer”; 3) “Can I speak to my lawyer? I can’t even talk to [my] lawyer before I make any kinds of comments or anything?”; 4) “Can I have somebody else present too, I mean just for my safety, like a lawyer …?”; 5) “I would like to have somebody else in here because I may say something I don’t even know what I am saying …”; and “You did say I could have an attorney, if I wanted one?”.
The Virginia courts have also ruled in favor of defendants on this issue. They have held that suspects made clear requests for counsel when they said “I think I would rather have an attorney here to speak for me” and “I’d really like to talk to a lawyer because this is – oh my God, oh, my Jesus, why?”
There is some guidance (limited though it may be) for the police to be gleaned from the Virginia appellate court cases. For example, if a suspect says something that could be construed as a request for counsel but states his comment as a question, it is less likely that the courts will view it as a clear request for an attorney. Notice that in many of the cases cited above, where the courts ruled against the defendants, the statement about a lawyer at issue in the case was in the form of a question. As with many legal generalizations, however, this is certainly not a hard and fast rule. For example, in Ferguson v. Commonwealth, the Virginia Court of Appeals held that Ferguson made an unambiguous request for an attorney when he said, “Nah, I want a lawyer, you know what I'm saying?" In Hilliard, the Virginia Supreme Cour held that Hilliard made a clear request for a lawyer when he asked the police “can I get a lawyer in here?”
Sometimes a suspect’s comment about counsel will be viewed as a reservation on the part of the suspect about proceeding without a lawyer, but not as a request for counsel. In Midkiff v. Commonwealth, for example, the Virginia Supreme Court viewed Midkiff’s statement that “I’ll be honest with you, I’m scared to say anything without talking to a lawyer” as expressing Midkiff’s “reservation about the wisdom of continuing the interrogation without consulting a lawyer” and therefore not a clear and unambiguous expression of “a desire to invoke his right to counsel.”
On other occasions, the courts have viewed a suspect’s statement about counsel as an “inquiry requesting clarification or affirmation of the rights that had just been explained to him.” That was the Virginia Supreme Court’s view of Hilliard’s statement to the police, "Can I have someone else present too, I mean just for my safety, like a lawyer like y'all just said?" Hilliard made this statement immediately after being advised of his rights. The court held that this was not a clear, unambiguous request for an attorney.
The Virginia Court of Appeals has also make it clear that it is not enough for a suspect to say he does not want to waive his rights; he must make a specific request for a lawyer. In Medley v. Commonwealth, when Special Agent Wendell advised Medley of his rights, Medley was emphatic that he was not waiving any of his rights. However, he was equally emphatic that he wanted to talk with Wendell. Wendell said he could not talk with Medley since he was invoking his rights. Medley reiterated that he wanted to talk with the Wendell. Finally, Wendell left Medley without questioning him.
“A few moments later,” another officer who had remained with Medley approached Wendell and said that Medley wanted to talk with Wendell. Wendell told Medley that he could not talk with him unless he waived his rights. Medley said he would talk to Wendell off the record, but Wendell said he could not do that. Wendell testified that he began talking with Medley at this point because he “consistently told me that he wanted to talk to me.” The Court of Appeals decided (8-2) that Medley did not invoke his right to counsel. “[A] general refusal to waive his rights, standing alone, is hardly sufficient to convey to police a clear and unequivocal request for counsel.”
In deciding the issue of whether a suspect has invoked his right to counsel, the Virginia Supreme Court has indicated that it will not take into account events that transpire after the suspect’s purported request for counsel. In Redmond, the court concluded that Redmond’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?”, did not constitute an unequivocal request for an attorney. Later in his exchange with the officers questioning him, Redmond said “I would like to speak to a lawyer on this one.” The state wanted the Virginia Supreme Court to consider this latter statement by Redmond (indicating that he “knew how to clearly assert his right to counsel when he desired to do so”) in making its determination as to whether the earlier questions by Redmond were a clear request for counsel. The court declined to do so, citing Smith v. Illinois as indicating that “an accused's subsequent statements are not relevant to the question whether he invoked his right to counsel.”
While the Virginia Supreme Court is unwilling to consider statements made by a suspect after his purported request for counsel, it is quite willing to consider circumstances that precede the purported request, as well as the apparent purpose for which the request for a lawyer is made. For example, in Stevens v. Commonwealth, Stevens said at one point, “that’s what I want, a lawyer, man.” On its face, this would appear to be a rather strong statement indicating that Stevens wanted to consult an attorney. However, the court felt that the statement needed to be considered in context.
In particular, the court noted that Stevens had previously waived his Miranda rights (the day before and earlier on the day of this interrogation session). In addition, he had initiated a conversation with his primary interrogator. The interrogating officers also knew that the reason Stevens had been brought to the court building where the final interrogation took place was for the appointment of a lawyer to represent him (an appointment that had not yet been made at the time of the interrogation). The court indicated that “[i]n this context, Stevens' request for a lawyer could be understood by a reasonable police officer to refer to either a lawyer for purposes of the custodial interrogation or a lawyer to represent Stevens in court.” Since, in light of all the circumstances prior to Stevens’ request for an attorney, there were two logical interpretations of the request, the request could not be viewed as an unambiguous desire for a lawyer prior to or during questioning.
In Stevens, the court used pre-request circumstances to support a conclusion that the suspect did not make a clear request for an attorney. In Ferguson, the court used pre-request circumstances to bolster the opposite conclusion. In that case, Ferguson said “Nah, I want a lawyer, you know what I’m saying?” in response to a police officer’s request for consent to search Ferguson’s car. The state argued that Ferguson’s request for a lawyer was limited to a request for assistance in deciding whether to consent to the search.
However, the court put the request in a larger context. It pointed out that “[p]olice officers told [Ferguson] he was being interviewed in connection with a breaking and entering. Further, nothing in [Ferguson’s] first statement indicated that he wanted a lawyer only if the police were going to search his vehicle. [Ferguson] denied consent to search his vehicle, and then he stated his request to have counsel present.” Under all the circumstances, the court concluded, a reasonable police officer would have perceived Ferguson’s request for an attorney as a desire for the assistance of the attorney with regard to the police interrogation, not with regard to the police request for consent to search his car[SO2] .
The final case giving police some guidance in handling issues about invoking counsel is Burrell v. Commonwealth. When the police attempted to interrogate Burrell about possession of drugs, he indicated that there were “certain questions he didn’t want to answer without a lawyer.” Eventually, he made statements to the police admitting possession of cocaine. The Virginia Court of Appeals held that, while it was clear that Burrell wanted to consult counsel before answering certain questions, Burrell never specified what those questions were. This failure was fatal to Burrell’s case. The court indicated that “when a suspect makes a statement during a custodial interrogation that requests the presence of counsel before answering some questions, while also indicating a willingness to answer other questions without the presence of counsel, the statement must make it clear to a reasonable police officer what questions the suspect is unwilling to answer for the statement to effectively invoke the suspect's Miranda-Edwards right to counsel.”
Where do these cases leave the police in Virginia? It is clear that once a suspect has made a clear, unequivocal request for an attorney, nothing he says later is going to matter. It is also clear that a suspect will not invoke his right to counsel simply by saying he wants to assert all of his rights. The primary difficulty, however, is determining whether a statement from a suspect that might be interpreted as a request for counsel is a clear, unambiguous request. In Davis, the Supreme Court indicated that it did not want to place the police in an untenable position by requiring them to determine if a suspect had said something that could be reasonably interpreted as a request for counsel that would require the police to seek clarification from the suspect.
As indicated earlier, it is not clear that the rule crafted in Davis places the police in a better position. Deciding whether a suspect has made a clear, unequivocal request for a lawyer is arguably just as difficult a judgment as one concerning whether the suspect has made an ambiguous request for counsel. The Virginia cases dealing with this issue appear to support this observation. In four of the cases discussed in this article, the judges hearing the case (all of whom are presumably reasonable people) were not unanimous, but disagreed as to whether the defendant had made an unequivocal, unambiguous request for a lawyer. If judges often find it difficult to make this determination, there is no reason to think police officers will find it any easier. Thus, as is so often the case under the Fourth Amendment, Supreme Court case law requires the police to make difficult judgments.
 This case was reported in Tom Jackman, “The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer.” (https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/?utm_term=.ea282cad97eb&wpisrc=nl_az_most&wpmk=1, retrieved January 8, 2018).
 381 U.S. 436 (1966).
 469 U.S. 91 (1984).
 512 U.S. 452 (1994).
 Miranda also requires that the police advise a suspect that he has a right to remain silent. Similar to the rule adopted in Davis, the Supreme Court has held that a suspect must make a clear, unambiguous statement that he does not want to answer questions in order to invoke the right to silence. Berguis v. Thompkins, 560 U.S. 370 (2010).
 Mueller v. Commonwealth, 422 S.E.2d 380 (Va. Ct. App. 1993).
 Midkiff v. Commonwealth, 462 S.E.2d 112 (Va. 1995).
 Commonwealth v. Redmond, 568 S.E.2d 695 (Va. 2002).
 Hilliard v. Commonwealth, 613 S.E.2d 579 (Va. 2005).
 Eaton v. Commonwealth, 397 S.E.2d 385 (Va. 1990). Although this case was decided prior to Davis, the Virginia Supreme Court had held prior to Davis that the police could continue questioning a suspect in custody unless the suspect made an unequivocal, unambiguous request for counsel. Thus, Eaton, in effect, adopted the Davis rule prior to the Davis decision and thus remains relevant after Davis. Other pre-Davis cases include Bunch v. Commonwealth, 304 S.E.2d 271(Va.1983) and Poyner v. Commonwealth, 329 S.E.2d 815 (1985).
 McDaniel v. Commonwealth, 518 S.E.2d 851 (Va. Ct. App., en banc, 1999).
 Zektaw v. Commonwealth, 677 S.E.2d 49 (Va. 2009).
 654 S.E.2d 328 (Va. Ct. App. 2007).
 Hilliard, supra, note 9.
 Midkiff, supra, note 7.
 Hilliard, supra, note 9.
 602 S.E.2d 411 (Va. Ct. App., en banc, 2004).
 710 S.E.2d 509 (Va.Ct.App. 2011).
 McDaniel, supra, note 12; Redmond, supra, note 8; Medley, supra, note 18; Hilliard, supra, note 9.