Appeal by the State from judgment entered 15 August 2007 by
Judge John O. Craig in Randolph County Superior Court. Heard in
the Court of Appeals 25 August 2008.
Roy Cooper, Attorney General, by Charles E. Reece, Assistant
Attorney General, for the State.
Appellate Defender Staples Hughes, by Anne M. Gomez, Assistant
Appellate Defender, for defendant-appellee.
MARTIN, Chief Judge.
The State appeals, pursuant to N.C.G.S. § 15A-979(c), from an
order suppressing statements made by Terry Lee Dix (“defendant”) to
Detective McMasters of the Asheboro Police Department. The
evidence before the trial court at the hearing upon the motion to
suppress tended to show that, on March 22, 2006, Detective
McMasters and Sergeant Cook of the Randolph County Sheriff's
Department served defendant with warrants charging him with three
counts of statutory sex offense, three counts of taking indecent
liberties with a child, and one count of secret peeping. Detective
McMasters and Sergeant Cook located defendant at his residence,
where they placed him under arrest. Before being transported tothe police station, defendant indicated his willingness to talk
with Detective McMasters and tell his story. However, Detective
McMasters told defendant to wait until they arrived at the jail.
Detective McMasters indicated to defendant that, once at the
station, she would first advise defendant of his rights and then
listen to his side of the story, “[c]ause there's two sides to
every story.”
Defendant was then transported in custody to the Randolph
County Jail by Sergeant Cook. While he was being transported,
defendant made a brief unsolicited oral confession to Sergeant
Cook, who related this information to Detective McMasters. At the
police station, defendant was taken to an interrogation room and
“mirandized” by Detective McMasters. When Detective McMasters
asked defendant if he understood his rights, defendant replied,
“yeah.” Immediately thereafter, Detective McMasters and defendant
engaged in the following conversation:
McMasters: Okay. And will you answer some
questions for me?
Defendant: I'm probably gonna have to have
a lawyer.
McMasters: Okay but, ya know, I mean,
okay. But, ya know, I mean,
it's up to you if you wanna
answer questions or not. I
mean, you can answer till you
don't feel comfortable,
whatever and then not answer.
Ya know, that's totally up to
you. I know earlier you said
you was wanting to talk to me
because . . . .
Defendant: Yeah.
McMasters: . . . of course there's two
sides . . .
Defendant: Yeah.
McMasters: . . . to every story.
Defendant: But, no . . .
McMasters: Uhm . . .
Defendant: I . . .
McMasters: You wanna talk, ok.
Defendant: Yeah.
Thereafter, defendant signed a Waiver of Miranda Rights form
and Detective McMasters proceeded to conduct a recorded interview
with defendant which lasted approximately fifteen minutes.
At trial, Detective McMasters testified that, from defendant's
statement, “I'm probably gonna have to have a lawyer,” she “was
unclear whether he wanted to talk to me or not with the way he
approached me at the address on Brittain. He was wanting to tell
me what was going on or what had went on.” Detective McMasters was
then asked what her purpose was in saying to defendant, “I know, I
mean, it's up to you if you want to answer questions or not. I
mean, you can answer till you don't feel comfortable, whatever, and
then not answer. You know, it's totally up to you. I know . . .
you said you was wanting to talk to me.” Detective McMasters
replied, “I was wanting to clarify what he was wanting to do.”
After hearing evidence and arguments, the trial court made
findings of fact and conclusions of law, including, inter alia, the
following:
5) Immediately following advisement of his
Miranda Rights, the defendant invoked his
right to counsel by stating to the detective,
“I'm probably gonna have to have a lawyer”;
6) Detective McMasters did not ask defendant
any questions seeking to clarify his request
for an attorney after defendant made his
statement. The Court concludes that it is
required to resolve any ambiguity in
defendant's statement in favor of the
individual. State v. Torres, 330 N.C. 517,
412 S.E.2d 20 (1992);
(See footnote 1)
7) After defendant's invocation of his right
to counsel, the Waiver secured by Detective
McMasters cannot be considered valid. Edwards
v. Arizona, 451 U.S. 477, 68 L.E.2d 378
(1981).
Based on these conclusions of law, the trial court ordered the
defendant's recorded statement to Detective McMasters suppressed.
____________________
On appeal, the State contends the trial court's suppression of
defendant's statement was error for the following reasons:
1) defendant's statement was ambiguous and thus not an invocation
of his right to counsel; 2) Detective McMasters did seek
clarification following defendant's ambiguous statement, but was
not required to do so; and 3) the trial court was not required to
resolve any ambiguity in defendant's favor. We will first addresswhether defendant's statement constituted an invocation of his
right to counsel.
The trial court's findings of fact after a
hearing concerning
the admissibility of a confession are conclusive and binding on
this Court when supported by competent evidence.
See Barber, 335
N.C. at 129, 436 S.E.2d at 111.
The trial court's conclusions of
law, however, are reviewable
de novo.
See id. Under this
standard, the legal significance of the findings of fact made by
the trial court is a question of law for this Court to decide.
See
State v. Davis, 305 N.C. 400, 415, 290 S.E.2d 574, 583 (1982).
The
Miranda right to counsel is the right of a defendant to
have an attorney present during custodial interrogation “
[i]f . . .
he indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking.”
Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707
(1966). In
Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d
362 (1994), the United States Supreme Court held that to invoke his
right to counsel, “the suspect must unambiguously request counsel.”
Id. at 459, 129 L. Ed. 2d at 371. The invocation of the 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.'”
Id. (quoting
McNeil v. Wisconsin,
501 U.S. 171, 178, 115 L. Ed. 2d 158, 169 (1991)). The test is an
objective one that assesses whether a reasonable officer under the
circumstances would have understood the statement to be a request
for an attorney.
See id. This test examines more than the merewords used by a defendant.
See Barber, 335 N.C. at 130, 436 S.E.2d
at 111 (“In deciding whether a person has invoked her right to
counsel, therefore, a court must look not only at the words spoken,
but the context in which they are spoken as well.”) (citations
omitted). In fact, the understanding of the officer to whom a
defendant's statement is made may be indicative of how a reasonable
officer under the circumstances would have interpreted the
defendant's statement.
See State v. Jackson, 348 N.C. 52, 57, 497
S.E.2d 409, 412 (1998),
abrogated on other grounds by State v.
Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). As such, “the
likelihood that a suspect would wish counsel to be present is not”
the proper standard.
McNeil, 501 U.S. at 178, 115 L. Ed. 2d at 168
(emphasis in original). While “there are no 'magic words' which
must be uttered in order to invoke one's right to counsel,”
Barber,
335 N.C. at 130, 436 S.E.2d at 111, “a statement either is such an
assertion of the right to counsel or it is not.”
Davis, 512 U.S.
at 459, 129 L. Ed. 2d at 371.
It is well settled that, during
custodial interrogation, once a suspect invokes his right to
counsel, all questioning must cease until an attorney is present or
the suspect initiates further communication with the police.
See
Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386
(1981). However, “[i]f the suspect's statement is not an
unambiguous or unequivocal request for counsel, the officers have
no obligation to stop questioning him.”
Davis, 512 U.S. at 461-62,
129 L. Ed. 2d at 373. Thus, unless the in-custody suspect
“actually requests” an attorney, and thus invokes his right tocounsel, lawful questioning may continue.
Davis, 512 U.S. at 462,
129 L. Ed. 2d at 373;
State v. Hyatt, 355 N.C. 642, 655, 566 S.E.2d
61, 70 (2002);
State v. Barnes, 154 N.C. App. 111, 118, 572 S.E.2d
165, 170 (2002);
see also State v. Ash, 169 N.C. App. 715, 721, 611
S.E.2d 855, 860 (2005). Although the
Davis Court noted in dicta
that, “when a suspect makes an ambiguous statement it will often be
good police practice for the interviewing officer[] to clarify
whether or not he actually wants an attorney,” such clarifying
questions are not required.
Davis, 512 U.S. at 461, 129 L. Ed. 2d
at 373.
In
Davis, the Court held that a suspect's statement, “Maybe I
should talk to a lawyer,”
was not a request for counsel.
See id.
at 462, 129 L. Ed. 2d at 373. In reaching this conclusion, the
Court emphasized the importance of context. The defendant in
Davis
made the statement about an hour and a half into his interrogation,
at which point officers asked the defendant whether he was asking
for a lawyer or just making a comment about a lawyer.
See id. at
455
, 129 L. Ed. 2d at 368. Because a reasonable officer under the
circumstances would not have understood the
Davis defendant's
statement to be a request for an attorney, the Court ruled the
defendant's right to an attorney was not violated when defendant
responded that he did not want a lawyer and officers resumed
questioning.
See id. at 459, 129 L. Ed. 2d at 371.
In the case at bar, defendant's statement, “I'm probably gonna
have to have a lawyer,” taken out of context, cannot be the sole
determinate of whether defendant unambiguously invoked his right tocounsel. Defendant had already expressed a desire to “tell his
side of the story” to Detective McMasters, was asked by the
detective to wait until they were back at the station, and yet gave
a brief, unsolicited oral confession to Sergeant Cook en route to
the station. After being told about defendant's confession to
Sergeant Cook, Detective McMasters reasonably expected defendant to
continue their former conversation and proceed with the statement
defendant apparently wished to make. Thus, when defendant
remarked, “I'm probably gonna have to have a lawyer,” Detective
McMasters was understandably unsure of defendant's purpose. By
this statement, defendant neither refused nor agreed to answer
Detective McMasters's questions without an attorney present. In
this context, defendant's statement was ambiguous because no
reasonable officer under the circumstances would have understood
defendant's words as an unambiguous, “actual request” for an
attorney at that moment, as opposed to a mere comment about the
likelihood that defendant would eventually require the services of
an attorney in this matter, which he surely anticipated would
involve criminal proceedings. Detective McMasters's attempt to
“clarify what he wanted to do” evidences the ambiguous nature of
defendant's statement under the circumstances. Accordingly, we
hold the trial court's conclusion that defendant's statement was an
unambiguous invocation of his right to counsel was error.
We turn next to the trial court's conclusion that it was
required to resolve any ambiguity in defendant's statement in favor
of the individual. The trial court cites language from
State v.Torres, a case which predates
Davis, as authoritative on the
matter.
See State v. Torres, 330 N.C. 517, 530, 412 S.E.2d 20, 27
(1992)
. In
Torres,
our Supreme Court held that the defendant
invoked her right to counsel when she twice inquired of sheriff's
officials whether she needed an attorney.
See id. However, in
that case, police dissuaded defendant from exercising her right to
have counsel present during interrogation.
See id.
Although the
Torres court concluded that the defendant's statement was
unambiguous, the majority noted “even if defendant's invocation in
this case is termed ambiguous,” the result should remain the same
under the rule utilized in a majority of jurisdictions.
See id. at
529, 412 S.E.2d at 27. This rule provided that, when faced with an
ambiguous invocation of counsel, interrogation must immediately
cease except for narrow questions designed to clarify the suspect's
true intent.
See id. at 529, 412 S.E.2d at 27. However, the rule
enunciated in
Davis that, “[u]nless the in-custody suspect
'actually requests' an attorney, lawful questioning may continue,”
abrogated the then-majority rule discussed in
Torres.
See Hyatt,
355 N.C. at 655, 566 S.E.2d at 70 (citing
Davis, 512 U.S. at 462,
129 L. Ed. 2d at 373). The
Davis rule imposes the burden of
resolving any ambiguity as to whether a suspect wishes to invoke
his right to counsel upon the individual, rather than leaving the
question up to the interrogating officer.
See Davis, 512 U.S. at
475, 129 L. Ed. 2d at 381-82.
Although the officer is not required to ask any clarifying
questions when an ambiguous statement is made, we note thatDetective McMasters did not dissuade defendant from exercising his
right to have an attorney.
As discussed above, it was reasonable
for Detective McMasters to expect defendant to continue their
former conversation and proceed with the statement defendant
apparently wished to make. Accordingly, Detective McMasters's
confusion after defendant's ambiguous statement was also
reasonable. She responded, “It's up to you if you wanna answer
questions or not. I mean, you can answer till you don't feel
comfortable, whatever and then not answer. Ya know, that's totally
up to you. I know earlier you said you was wanting to talk to me
because . . . .” While we do not disturb the trial court's finding
that Detective McMasters asked no clarifying questions, we note
that the detective's response reflects her confusion. The
detective's subsequent testimony further evidences her desire to
clarify defendant's statement. Detective McMasters's attempt to
“clarify what he wanted to do” cannot be equated to badgering,
intimidating, threatening, or even ignoring the defendant. Thus,
the facts of this case more closely resemble the facts of
Davis
than those described in
Torres. Because this case, like
Davis,
involves an ambiguous reference to an attorney that a reasonable
officer under the circumstances would
have only understood
might be
an invocation of the right to counsel, neither the complete
cessation of questioning nor the limitation of questioning to
clarifying questions was required.
See Davis, 512 U.S. at 459, 129
L. Ed. 2d 369. Accordingly, the trial court's assumption that
Detective McMasters was required to ask clarifying questions, andits subsequent conclusion that it was required to resolve any
ambiguity in the defendant's favor were error.
In his brief, defendant argues that Detective McMasters's
response to defendant's ambiguous statement, if not a violation of
defendant's rights under
Davis, did violate defendant's rights
under Article I, Section 23 of the North Carolina Constitution.
That section provides in part, “every person charged with a crime
has the right . . . not to be compelled to give self-incriminating
evidence.” N.C. Const. art. I, § 23.
Defendant's argument relies heavily on the concurring opinion
of Justice Harry Martin in
Torres. In that case Justice Martin
reasoned, based solely on state constitutional grounds, that
continued questioning after an individual's invocation of the right
to counsel violates the right not to give self-incriminating
evidence.
See Torres, 330 N.C. at 531, 412 S.E.2d at 28.
However, defendant's reliance on this portion of
Torres is ill-
founded because Justice Martin, like the majority
, concluded that
the defendant's request for an attorney in that case was
unambiguous and thus tantamount to an invocation of the right to
counsel.
See id. at 533, 412 S.E.2d at 30. As such, Justice
Martin's reasoning does not apply to the facts of this case.
In sum,
the trial court's findings of fact do not support a
conclusion that defendant's waiver of rights was involuntary or
that his recorded statement should have been suppressed. Based on
the evidence presented at the motion to suppress hearing, the trial
judge should have ruled defendant's statement admissible. Accordingly, we reverse the trial judge's order suppressing
defendant's recorded statement and remand this case for further
proceedings.
Reversed and remanded.
Judges WYNN and HUNTER concur.
Footnote: 1