
497 S.E.2d 409 (1998)
348 N.C. 52
STATE of North Carolina
v.
Richard Allen JACKSON.
No. 12A96.
Supreme Court of North Carolina.
April 3, 1998.
*410 Michael F. Easley, Attorney General by Jill Ledford Cheek, Assistant Attorney General, and Tina A. Krasner, Associate Attorney General, for the State.
*411 Malcolm Ray Hunter, Jr., Appellate Defender, Durham, for defendant-appellant.
WEBB, Justice.
The defendant contends that at the time his inculpatory statements were made, he was in custody and had invoked his right to counsel. He assigns error to the admission into evidence of these statements. This assignment of error has merit.
The State argues that the defendant's statement was properly admitted into evidence at trial because: (1) the defendant was not in custody at the time he stated he thought he needed a lawyer; and (2) even if the defendant was in custody, his statement was not an invocation of his Fifth Amendment right to counsel. We disagree.
If at any time during an interrogation of a person in custody the person invokes his right to counsel, the interrogation must cease, and it cannot be resumed without an attorney being present unless the defendant initiates a further discussion with the officers. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. A suspect is in custody when, considering the totality of circumstances, a reasonable person in the suspect's position would not feel free to leave. "This test is necessarily an objective one to be applied on a case-by-case basis considering all the facts and circumstances." State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993).
We are faced with two questions. The first question is whether the defendant was in custody at the time he made his incriminating statements. The second question is whether the defendant, during the interrogation, invoked his right to counsel before he incriminated himself.
In determining the custody issue, we first note that the trial court made no finding as to whether the defendant was in custody when he made his statement in regard to needing a lawyer. However, the lack of such a finding does not prevent this Court from evaluating the evidence and deciding whether the defendant was in custody. State v. Torres, 330 N.C. 517, 525, 412 S.E.2d 20, 24 (1992).
In this case, we conclude that a reasonable person in the defendant's position when he was confronted by the sheriff would have felt he was in custody and would not have felt free to leave. The evidence showed that, at the request of two deputy sheriffs, the defendant accompanied them to the sheriff's office. While at the sheriff's office, the defendant consented to fingerprinting and gave blood and hair samples. He was under constant supervision. The defendant had told the officers he was anxious to return to work, and despite answering all questions from them and telling them he had no knowledge of the crime, he was never told that he was free to leave or that he would be given a ride to his home or place of work if he decided to leave.
After being in the interrogation room for a period of approximately three hours, during which time he was questioned by the officers in regard to the murder, had hair and blood samples taken, and was fingerprinted, a reasonable man at the least would have wondered whether he was free to leave. When the sheriff asked him what he had done with the rifle he had used to kill the victim, this informed the defendant that the sheriff thought he had committed murder. A reasonable man in the defendant's position who had been interrogated for approximately three hours and thought the sheriff believed he had committed murder would not have thought he was free to leave. He would have thought the sheriff intended to hold him for prosecution for murder. Thus, we hold that the defendant was in custody when he inquired about an attorney.
Having held that the defendant was in custody when he made his statement in regard to counsel, we must now determine whether the defendant articulated his desire for counsel sufficiently that a reasonable officer in the circumstances would have understood the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The trial court found, based on sufficient evidence, that the defendant said, "I think I need a lawyer present." The State, relying *412 on Davis, says that this statement was ambiguous and that the officers were not required to stop questioning the defendant. In Davis, the defendant said, "Maybe I should talk to a lawyer." Id. at 455, 114 S.Ct. at 2353, 129 L.Ed.2d at 368. The United States Supreme Court held this was not a request for counsel.
Davis is not precedent for this case. The use of the word "[m]aybe" by the defendant in Davis connotes uncertainty. There was no uncertainty by the defendant. When he said, "I think I need a lawyer present," he told the officers what he thought. He thought he needed a lawyer. This was not an ambiguous statement. The interrogation should have stopped at that time.
We are reinforced in our decision by the notes of one of the officers which were made during the interrogation. The notes say, "2:04 P.M. on 12-20-94, wants a lawyer present." Although not binding on us, this is an indication of how a reasonable officer conducting an interrogation would have interpreted the defendant's statement.
We have held that the defendant was in custody and had invoked his right to counsel when he made his inculpatory statements. The inculpatory statements made to the detectives should have been excluded because they were made after the defendant invoked his right to counsel. The defendant did not initiate the communication that led to his statements, nor was his attorney present when they were made. Therefore, once the defendant had invoked his right to counsel, no further interrogation could occur.
We cannot hold beyond a reasonable doubt that the admission of this testimony was harmless. N.C.G.S. § 15A-1443(b) (1988). Therefore, for this error, there must be a new trial.
In light of the fact that the defendant will receive a new trial, we do not discuss the defendant's other assignments of error, for the questions they raise may not recur at a new trial. For the reasons stated in this opinion, the defendant must have a new trial.
NEW TRIAL.
Justice ORR did not participate in the consideration or decision of this case.
