Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell and Lacy, S.JJ.

ROGER LEE STEVENS,
S/K/A ROGER LEE STEPHENS

v.   Record No. 110402                OPINION BY SENIOR JUSTICE
                                          ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA                  January 13, 2012


                 FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, we consider whether the Court of Appeals of

Virginia erred in affirming the trial court’s denial of the

defendant’s motion to suppress his statement to police during a

custodial interrogation because, in light of the circumstances,

the defendant’s request for a lawyer was ambiguous and,

therefore, the officers were entitled to ask further clarifying

questions.

                                 BACKGROUND

      The facts are not in dispute.   Zachary Titus and Mark

Hopkinson were shot and killed in the course of a drug

transaction and robbery in Pittsylvania County.    Roger Lee

Stevens was arrested in connection with these murders and taken

to a police station in Chatham, Virginia for questioning.

Officers William H. Chaney and T. L. Nicholson with the

Pittsylvania County Sheriff’s Department conducted the

interrogation.    Officer Chaney advised Stevens of his right to

have counsel present during the custodial interrogation and his
right to remain silent or terminate the interrogation at any

time pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and

Stevens voluntarily waived these rights.    Stevens answered the

officers’ questions for approximately two hours, during which

time he did not ask for an attorney and made no incriminating

statements.

     The next morning, pursuant to the magistrate’s order,

Stevens was transported to the court building for his initial

appearance before a court not of record for purposes of advising

him of his right to bail and for appointment of counsel if

appropriate.   Code §§ 19.2-158 and -159.   However, the

magistrate’s order incorrectly sent Stevens to the juvenile and

domestic relations district court rather than the general

district court.   Because the general district court was not in

session, Stevens was placed in a holding cell pending his

transfer back to jail.

     Officer Chaney received word that Stevens wanted to talk

with Chaney again.   Chaney went to the holding cell and had a

“basic conversation” with Stevens.   Stevens asked if he could go

home to see his child.   Chaney explained that Stevens was in

police custody for several serious crimes and could not go home.

Chaney told Stevens that later he would have Stevens brought

down to Chaney’s office, which was in the same building as the

holding cell, to talk with him some more.

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     Later in the day, Officers Chaney and Nicholson had Stevens

brought to their office.     The conversation was digitally

recorded and proceeded as follows:

     Chaney:    You wanna, you want to talk to us some more?

     Stevens:    Ya’ll want to talk to me or something?

     Chaney:    Yeah.   You want to talk to us?

     Stevens: Ya’ll want to talk to me?      I ain’t doing nothing
     [inaudible] sitting.

     Chaney: 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.

     Nicholson:    Yeah.

     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.



                                   3
     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 any time you want to.

     Nicholson:   No problem at all with that.

     Chaney: All you got to say is I don’t want to say-I don’t
     want to talk to you no more. That’s all you gotta say.

Following this exchange, the officers continued to interview

Stevens for approximately two-and-a-half hours during which time

Stevens made incriminating statements.

     Stevens was indicted by a multi-jurisdictional grand jury

impaneled at the Circuit Court of Halifax County for two counts

of murder, Code § 18.2-32, two counts of use of a firearm in the

commission of murder, Code § 18.2-53.1, conspiracy to commit

robbery, Code §§ 18.2-22 and 18.2-58, robbery, Code § 18.2-58,

use of a firearm in the commission of robbery, Code § 18.2-53.1,

malicious bodily injury, Code § 18.2-51, and use of a firearm in

the commission of malicious wounding, Code § 18.2-53.1.

     Prior to trial, Stevens filed a motion to suppress the

incriminating statements he made to police on the grounds that


                                 4
the statements were taken in a custodial interrogation

subsequent to his request for a lawyer and therefore were taken

in violation of the Fifth, Sixth and Fourteenth Amendments to

the United States Constitution.    The trial court denied Stevens’

motion finding that, under the circumstances, the statements and

questions by the police officers following Stevens’ reference to

wanting a lawyer were to clarify Stevens’ request and therefore

did not violate his constitutional rights.    Stevens was found

guilty on all indictments by a Pittsylvania County jury and the

circuit court sentenced him to 160 years’ imprisonment.

       A divided panel of the Court of Appeals of Virginia

reversed Stevens’ convictions and remanded the matter for a new

trial.   The Court of Appeals granted the Commonwealth’s petition

for rehearing en banc, vacated the panel’s previous decision,

and affirmed Stevens’ conviction.     Stevens v. Commonwealth, 57

Va. App. 566, 704 S.E.2d 585 (2011).    The Court of Appeals held

that

       Stevens’ statement was ambiguous because the
       circumstances leading up to Stevens’ statement made it
       unclear whether Stevens had requested the presence of
       an attorney during custodial interrogation, or whether
       he had simply expressed his desire to have an attorney
       appointed to represent him at trial. Because of this
       ambiguity, we conclude that the police were permitted
       to ask Stevens limited questions solely for the
       purpose of clarifying the statement. Accordingly, we
       hold that the police did not violate Stevens’ right to
       counsel under Miranda . . . .

Id. at 568-69, 704 S.E.2d at 587.

                                  5
     This Court granted Stevens an appeal on the following

assignment of error:

     The Court of Appeals erred when it affirmed the
     trial court’s denial of the appellant’s suppression
     motion holding the investigators could ask
     clarifying questions of appellant as the
     circumstances of his request for counsel rendered
     that request ambiguous.

                                DISCUSSION

     In this case, there is no dispute regarding the facts.

Consequently, this appeal presents a pure question of law that

is subject to de novo review.   Specifically, we apply the

requisite constitutional standards to the facts of the case to

determine whether Stevens’ request for an attorney during the

custodial interrogation was sufficiently unambiguous under the

circumstances to preclude further questioning by the law

enforcement officers.   Commonwealth v. Redmond, 264 Va. 321,

326-27, 568 S.E.2d 695, 697-98 (2002).       See also Zektaw v.

Commonwealth, 278 Va. 127, 134-35, 677 S.E.2d 49, 53 (2009)

(when defendant does not dispute the content of his statements

to 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 whether [his] words, taken

in context, were sufficient to invoke his right to counsel”)

(quoting Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d

579, 584 (2005)).

                                  6
     The constitutional standards we apply are well-established.

An accused’s right to have counsel present during a custodial

interrogation was first recognized in Miranda, 384 U.S. at 474.

The principle is now well-established that, pursuant to the

Fifth Amendment of the United States Constitution, law

enforcement officers must inform a suspect in a custodial

interrogation of certain rights, including the right to remain

silent and to have the assistance and presence of legal counsel

during the interrogation.   Commonwealth v. Hilliard, 270 Va. 42,

49, 613 S.E.2d 579, 584 (2005).   If the accused expresses a

desire to have counsel present during a custodial interrogation,

law enforcement officers must cease their interrogation until

counsel is present or the accused initiates further

communication with the authorities.    Midkiff v. Commonwealth,

250 Va. 262, 266, 462 S.E.2d 112, 114 (1995) (citing Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981)).    See also Zektaw, 278 Va.

at 136, 677 S.E.2d at 53 (quoting Edwards).

     To invoke the protections provided by Miranda and Edwards

an accused must clearly and unambiguously assert his right to

counsel.   Zektaw, 278 Va. at 136, 677 S.E.2d at 53; Midkiff, 250

Va. at 266, 462 S.E.2d at 115.    However, in situations where

     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


                                  7
     counsel, our precedents do not require the cessation of
     questioning.

Davis v. United States, 512 U.S. 452, 458 (1994).   The Supreme

Court recognized that, in such situations, it would “be good

police practice for the interviewing officers to clarify whether

or not [the accused] actually wants an attorney” but the Court

did not establish a rule that officers must ask clarifying

questions.   Id. at 461-62.

     Finally, in Smith v. Illinois, 469 U.S. 91, 99-100 (1984),

the Supreme Court held that “an accused’s postrequest responses

to further interrogation may not be used to cast retrospective

doubt on the clarity of the initial request itself” but the case

did not address what, if any, events preceding the request could

be considered as rendering the request ambiguous or equivocal.

     Stevens argues that his statement “[t]hat’s what I want, a

lawyer, man” was clear and unambiguous and, therefore, at that

moment, all further questioning by the officers had to stop.     He

argues that further interpretation or clarifying questions are

justified only when the words themselves are ambiguous or

unclear.   The Commonwealth responds that the single statement

should not be considered in isolation and, that taken in

context, a reasonable police officer could have been uncertain

as to whether Stevens was expressing a desire for the

appointment of counsel to represent him at trial or to be


                                 8
present during the custodial interrogation.   Under these

circumstances, the Commonwealth contends, the officers did not

violate Stevens’ Miranda rights when they asked questions to

clarify Stevens’ intent.

     We reject Stevens’ contention that the determination

regarding the request for an attorney during a custodial

interrogation is limited to consideration of only the words

spoken.    Hilliard, 270 Va. at 50, 613 S.E.2d at 585.   While

post-request responses to questioning may not be used to “cast

retrospective doubt on the clarity of the initial request

itself,” Smith, 469 U.S. at 99-100, pre-request circumstances

are relevant to determining the clarity of the request.     Whether

a suspect has invoked his right to counsel during a custodial

interrogation is an objective inquiry and the invocation of the

request for counsel must be such that “a reasonable officer in

light of the circumstances” would understand the statement to be

a request to have counsel present for the interrogation.     Davis,

512 U.S. at 459 (emphasis added); Zektaw, 278 Va. at 136, 677

S.E.2d at 54; Redmond, 264 Va. at 328, 568 S.E.2d at 699.     This

test set out by the Supreme Court does not limit the inquiry to

the single statement requesting a lawyer as Stevens asserts, but

includes consideration of the circumstances preceding the

request.   If those circumstances would lead a reasonable police

officer to conclude that Stevens’ request for a lawyer could

                                  9
have been for a reason other than a lawyer’s presence at the

custodial interrogation, the officers were entitled to proceed

as they did and ask questions to clarify Stevens’ meaning.    See

Cooper v. Taylor, 103 F.3d 366, 373 (4th Cir. 1996) (Luttig, J.,

concurring) (accused’s response to officer’s question about a

desire for a lawyer was ambiguous in the context of the

immediately preceding questions and answers and especially

because of the accused’s earlier waivers).   Thus, the

circumstances preceding Stevens’ request for an attorney are

relevant to the determination whether his request was clear and

unambiguous.

     Stevens next asserts that “[n]othing in the circumstances

of the present case was ambiguous or equivocal” particularly

because the request for an attorney was made while the officers

were reminding Stevens of his Fifth Amendment right to an

attorney.   Again, we disagree.   The circumstances preceding the

moment when the officers heard Stevens say “[t]hat’s what I

want, a lawyer, man” included Stevens’ prior waiver of his

Miranda rights; two conversations during which Stevens did not

request an attorney; Stevens’ re-initiation of the second

conversation with Officer Chaney; and the officers’ knowledge

that one of the reasons Stevens was brought to the court

building was for the appointment of an attorney to represent him

in the ensuing legal proceedings, but that no attorney had been

                                  10
appointed for him by the time they met with Stevens for the

third time because the general district court was not in

session. ∗   These circumstances support a reasonable police

officer’s belief that Stevens was willing to talk with the

officers without an attorney present and that Stevens was in the

court building for the appointment of a lawyer but no lawyer had

yet been appointed.    In 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.       We

agree with the Court of Appeals, that under the facts of this

case, Officers Chaney and Nicholson “could have reasonably

viewed Stevens’ statement as ambiguous, and thus they were

permitted to ask Stevens clarifying questions . . . .”    57 Va.

App. at 580, 704 S.E.2d at 592.

     Accordingly, we will affirm the judgment of the Court of

Appeals.

                                                           Affirmed.




     ∗
      Stevens argued on brief and in oral argument that the
record did not support the Court of Appeals’ conclusion that the
officers knew of the “botched” proceeding to appoint Stevens an
attorney. We do not address this issue because Stevens did not
assign error to the Court of Appeals’ holding. Rule
5:17(c)(1)(i).
                                  11
