                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Kelsey and Senior Judge Bumgardner
Argued at Chesapeake, Virginia


TERRY P. PHILLIPS, S/K/A
 TERRY PRESSON PHILLIPS
                                                                 MEMORANDUM OPINION* BY
v.       Record No. 0570-06-1                                   JUDGE ROBERT J. HUMPHREYS
                                                                      MARCH 13, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Thomas S. Shadrick, Judge

                   Edwin Stuart Booth, Assistant Public Defender, for appellant.

                   J. Robert Bryden, II, Assistant Attorney General (Robert F.
                   McDonnell, Attorney General, on brief), for appellee.


         Terry Presson Phillips (“Phillips”) appeals his conviction of second-degree murder, in

violation of Code § 18.2-32. On appeal, Phillips argues that the trial court erred in denying his

motion to suppress. Specifically, Phillips contends that he “clearly asserted his right to counsel”

and any statements made after his request for counsel were inadmissible because they were

obtained in violation of Miranda. For the following reasons, we disagree, and affirm the trial

court.

                                               ANALYSIS

         On appeal from a trial court’s ruling on a motion to suppress, the appellant must show

that the trial court’s decision constituted reversible error. See Stanley v. Commonwealth, 16

Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in the light most

favorable to the prevailing party, granting to it all reasonable inferences fairly deducible

         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom, see Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991),

and we review the trial court’s findings of historical fact only for clear error, see Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996). However, we review de

novo the trial court’s application of defined legal standards to the particular facts of a case. Id.;

see also Ornelas v. United States, 517 U.S. 690, 697 (1996).

       Under well-settled law, if an accused has “clearly asserted his right to counsel,” all

interrogation must stop “until counsel has been made available to [the accused], unless the

accused himself initiates further communication, exchanges, or conversations with the police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “[The Supreme] Court has consistently held

that a clear and unambiguous assertion of the right to counsel is necessary to invoke the Edwards

rule.” Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d 112, 115 (1995) (citing Mueller

v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992); King v. Commonwealth, 243 Va. 353,

416 S.E.2d 669 (1992); Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990)).

       Moreover, “while recognizing that good practice suggests that the police should attempt

to clarify ambiguous statements, nevertheless [], after a voluntary and knowing waiver of

Miranda rights, officers may continue questioning until the suspect clearly and unequivocally

requests an attorney.” Id. (citing Davis v. United States, 512 U.S. 452, 461 (1994)). In other

words, to invoke this right, “a suspect must state his desire to have counsel present with

sufficient clarity that a reasonable police officer under the circumstances would understand the

statement to be a request for counsel.” Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d

579, 584 (2005) (citing Davis, 512 U.S. at 459; Commonwealth v. Redmond, 264 Va. 321,

328-29, 568 S.E.2d 695, 699 (2002); Eaton, 240 Va. at 253-54, 397 S.E.2d at 395-96).

       On several occasions, the Court has been faced with the task of determining whether an

assertion amounts to a “clear invocation” of the right to counsel. For example, in Mueller, the

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Court held that the question, “Do you think I need an attorney here?” fell short of being an

unequivocal assertion of counsel. Mueller, 244 Va. at 396, 422 S.E.2d at 387. Likewise, in

Eaton, the question “You did say I could have an attorney if I wanted one?” was not sufficient to

invoke the right to counsel. Eaton, 240 Va. at 250, 397 S.E.2d at 393. And, in Poyner v.

Commonwealth, 229 Va. 401, 410, 329 S.E.2d 815, 823 (1985), the question “Didn’t you say I

have the right to an attorney?” was not a clear assertion of the right to counsel. Moreover, the

United States Supreme Court held in Davis that the statement, “Maybe I should talk to a lawyer,”

did not qualify as an invocation of the right to counsel. Davis, 512 U.S. at 462.

       In this case, the trial court made specific findings of fact regarding Phillips’ alleged

assertion of his right to counsel. First, the trial court found that Phillips made the statement, “I

guess I need a lawyer,” in a questioning tone. Second, the trial court found that, although it was

muffled, Phillips stated “Yeah, but” in response to Detective Pickell’s attempt to clarify whether

Phillips wanted counsel present.1 Moreover, the trial court noted that Phillips’ intonation and

appearance made it “clear” that Phillips “was really not sure what he should do.” Upon review

of the videotape, we hold that “these historical facts are [not] plainly wrong, or without evidence

to support them,” and we are bound by these findings. See Shears, 23 Va. App. at 398, 477

S.E.2d at 311.

       Based upon these facts, we now turn to the legal question of whether Phillips’ “words,

taken in context, were sufficient to invoke his right to counsel.” Hilliard, 270 Va. at 49, 613

S.E.2d at 584; see also Redmond, 264 Va. at 327, 568 S.E.2d at 698. We hold they were not.




       1
          We note, after viewing the tape, that Phillips’ response was indeed muffled. And
although we can hear Phillips respond, “Yeah,” we cannot say with certainty that he said
anything other than “but” following this response. Thus, we defer to the trial court’s finding that
Phillips stated, “Yeah, but.”
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        After Pickell read Phillips his Miranda rights, Phillips said, “I guess I need a lawyer.”

The trial court found that Phillips’ words “came out as a question” rather than a statement.

Moreover, the trial court noted Phillips’ body language and its correlation to the intonation in

Phillips’ voice. Although in McDaniel v. Commonwealth, 30 Va. App. 602, 604, 218 S.E.2d

851, 852 (1999), we held that the statement, “I think I would rather have an attorney here to

speak for me,” was sufficient to invoke the right of counsel, we note a crucial factual distinction

between McDaniel and the case at hand. In McDaniel, the trial court made the factual finding

that “McDaniel’s request for an attorney was not a question.” Id. (emphasis added). Here, the

trial court made the explicit finding that Phillips’ alleged request for counsel “came out as a

question.” In other words, Phillips was questioning his need for an attorney.

        Moreover, when asked to clarify whether he wanted an attorney, the trial court found that

Phillips stated, “Yeah, but.” The generally accepted meaning of the word “but” is “except for

the fact,” “on the other hand,” or “unless.” Webster’s Third New International Dictionary 303

(1993). By qualifying his response with “but,” we hold that Phillips was not certain in his

response. These assertions are clearly equivocal.

        Thus, based on the questioning tone in Phillips’ voice, the content of his statements, and

his body language, we hold that Phillips’ statements did not amount to an unequivocal assertion

of his right to counsel.

                                          CONCLUSION

        For the reasons stated, we hold that the trial court did not err in denying Phillips’ motion

to suppress. Accordingly, we affirm the conviction.

                                                                                     Affirmed.




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