                                  Cite as 2015 Ark. App. 589


                    ARKANSAS COURT OF APPEALS
                                         DIVISION III
                                         No. CR-15-427



                                                   Opinion Delivered   October 21, 2015

ARDWIN SYLVESTER                                   APPEAL FROM THE SEBASTIAN
                               APPELLANT           COUNTY CIRCUIT COURT,
                                                   FORT SMITH DISTRICT
                                                   [No. CR-2014-633]
V.
                                                   HONORABLE J. MICHAEL FITZHUGH,
                                                   JUDGE
STATE OF ARKANSAS
                                 APPELLEE          AFFIRMED


                                LARRY D. VAUGHT, Judge

        On April 16, 2015, appellant Ardwin Sylvester was convicted by a jury in the

 Sebastian County Circuit Court of felon in possession of a firearm and sentenced to forty

 years in the Arkansas Department of Correction. On appeal, Sylvester argues that the trial

 court erred by denying his motion to suppress his statement to police, claiming that it was

 taken in violation of his right to have counsel present. We affirm.

        On July 9, 2014, Sylvester was charged with aggravated robbery, kidnapping, rape,

 and felon in possession of a firearm. Sylvester moved to sever the charge of felon in

 possession of a firearm, which was granted by the trial court. Prior to trial on the felon-in-

 possession-of-a-firearm charge, Sylvester filed a motion to suppress a statement he had made

 to police during an interview, alleging that it was taken after he had requested to have

 counsel present.
                                  Cite as 2015 Ark. App. 589

       A hearing on the motion took place on April 15, 2015. Hayes McWhirter, a criminal

investigator with the Arkansas State Police, testified that he conducted Sylvester’s interview

at the Sevier County Sheriff’s Office in DeQueen after Sylvester had been arrested for

kidnapping. He indicated that Zane Butler, an investigator with the Ashdown Police

Department, was also present during the interview. McWhirter stated that he read Sylvester

his rights and talked with him about his rights, which was recorded. He indicated that

Sylvester also initialed and signed the Miranda rights form. The recording was played at the

hearing.

       The abstracted transcript of the recording indicates that when McWhirter asked if

Sylvester had anything to tell him, Sylvester replied,

       I ain’t gonna say anything until I can figure out what you are going to charge me with.
       I am going to be charged with kidnapping and what else? I don’t know why I am
       going to be charged with a sexual offense. Yeah, yeah --- yeah, I will have to get a
       lawyer present.

       McWhirter then asked Sylvester what happened in Fort Smith, and Sylvester

responded, “Nothing happened in Fort Smith. I told her to scoot over and let me drive.”

McWhirter asked Sylvester whether he had a gun on him, and Sylvester replied, “Yes.

Nothing sexual took place. I was driving. I want a lawyer present during questioning. All this

has gone AWOL. It’s best to have a lawyer present.” At this point, the interview was

stopped.

       When questioned about the interview, McWhirter testified that he listened to the

recording several times and did not notice the first time Sylvester mentioned a lawyer until

he read the transcript, adding that he wears a hearing aide. He stated that the only time he

heard Sylvester say anything about a lawyer was at the end when he stopped the interview.

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McWhirter testified that, based on his forty-three years of experience, he did not think that

Sylvester was asking for a lawyer when he first mentioned a lawyer, saying “[Y]eah, yeah ---

yeah, I will have to get a lawyer present.”

       After the testimony of McWhirter, Sylvester’s counsel argued that Sylvester’s

statement was an unambiguous request for counsel and that it should be suppressed. The

prosecutor responded that Sylvester never made it clear to McWhirter because he mumbled

it under his breath and was not facing McWhirter when he made the statement. In denying

the motion, the trial court stated that the case was similar to Baker v. State, 363 Ark. 339,

343–44, 214 S.W.3d 239, 242 (2005), in that Sylvester’s statement was a prospective

response, indicating “that he might need an attorney in the foreseeable future.” The trial

court found that Sylvester’s statement was prospective and denied the motion to suppress.

       On appeal, Sylvester argues that the trial court erred in denying appellant’s motion to

suppress his statement made to police. In reviewing a trial court’s ruling on a motion to

suppress, this court makes an independent determination based on the totality of the

circumstances but will reverse the decision only if it is clearly against the preponderance of

the evidence. Dodge v. State, 2013 Ark. App. 247, at 6, 427 S.W.3d 149, 152.

       The United States Supreme Court has made it clear that when invoking the Miranda

right to counsel, the accused must be unambiguous and unequivocal. Baker, 363 Ark. at 343–

44, 214 S.W.3d at 242 (citing Edwards v. Arizona, 451 U.S. 477 (1981); Davis v. United States,

512 U.S. 452 (1994)). The Court has explained that “if 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


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counsel, our precedents do not require cessation of questioning.” Higgins v. State, 317 Ark.

555, 562, 879 S.W.2d 424, 427 (1994) (quoting Davis v. United States, 512 U.S. at 461)).

          Sylvester argues that his statement—“[Y]eah, yeah --- yeah, I will have to get a lawyer

present”—was an unambiguous and unequivocal request for counsel; therefore, the trial

court erred in denying his motion to suppress the statement he made after he had invoked

his right to counsel. The State responds that the trial court’s ruling Sylvester’s statement was

a prospective response was not clearly against the preponderance of the evidence. The State,

as did the trial court in its ruling, relied on Baker v. State.

          In Baker, our supreme court found that Baker’s reference to an attorney during

questioning was ambiguous. Baker, 363 Ark. at 345, 214 S.W.3d at 243. There, Baker stated

during his interview that he felt like he should not answer any more questions without

having an attorney present. When Baker was asked to clarify his statement he answered, “I

think I’m going to need one. I mean, it looks like that.” The questioning continued without

any references to an attorney, and in a subsequent interview Baker made an admission

leading to his arrest. The court stated that Baker’s response was prospective, indicating that

he thought he might need an attorney at some point in the foreseeable future. In upholding

the denial of the motion to suppress, the court held that because Baker was Mirandized

before the interview and that his reference to an attorney was equivocal and ambiguous, his

rights were not violated when the officers continued to question him. Id. at 345, 214 S.W.3d

at 243.

          The facts of the present case are analogous to Baker. During questioning and

discussion with investigators about what he was going to be charged with, Sylvester said in


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response, “Yeah, yeah --- yeah, I will have to get a lawyer present.” Similar to the statement

in Baker, this was a prospective response that Sylvester will need an attorney at some point in

the future. Sylvester was Mirandized before the interview, and the reference to an attorney

was ambiguous and equivocal. Based on these facts, the investigators did not violate

Sylvester’s right to counsel by continuing to question him. Therefore, the trial court’s

decision to deny Sylvester’s motion to suppress was not clearly against the preponderance of

the evidence.

       Affirmed.

       VIRDEN and GLOVER, JJ., agree.

       Charlene Davidson Henry, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brooke Jackson, Ass’t Att’y Gen., for appellee.




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