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    NOT TO BE PUBLISHED OPINION


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                                                           RENDERED : MARCH 20, 2008
                                                               NOT TO BE PUBLISHED


                 ,;vuyrrmr Courf of ~i i4
                                   2005-SC-000820-MR


 ROBERT HOWARD BURNETT II                                                      APPELLANT



                     ON APPEAL FROM FAYETTE CIRCUIT COURT
 V.                   HONORABLE PAMELA GOODWINE, JUDGE
                                NO. 05-CR-000207


 COMMONWEALTH OF KENTUCKY                                                       APPELLEE


                       MEMORANDUM OPINION OF THE COURT

                                       AFFIRMING

       The sole issue in this matter of right appeal is whether the trial court properly

denied Appellant's motion to suppress the statement he gave to the police after the

Appellant contends he invoked his right to counsel . Upon review of the police interview

in its entirety, we adjudge that, although Appellant did invoke his right to counsel, he

waived that right when he immediately thereafter volunteered statements that were not

in response to police questioning . Hence, we affirm the denial of the motion to

suppress.

       In February of 2005, Robert Howard Burnett II, was indicted for offenses

involving his son T.B., occurring between 2000 and 2004. Burnett was indicted in the

Fayette Circuit Court for: First-Degree Sodomy; Use of a Minor in Sexual Performance ;

First-Degree Sexual Abuse; and Second- Degree Persistent Felony Offender (PFO II).

The PFO 11 count was based on two convictions of child molestation in 1996 in Indiana .
Pursuant to a plea agreement, Burnett entered a conditional guilty plea on August 5,

2005 to First-Degree Sodomy and PFO 11, and was sentenced to thirty (30) years

imprisonment.

        The sole issue before us is whether the statements made by Burnett to the police

should have been suppressed .      Detective David Hester of the Lexington Fayette Urban

County Government Division of Police, Crimes Against Children Unit, testified that he

read Burnett his Miranda rights at the beginning of interrogation . Detective Hester

believed Burnett did not invoke his right to counsel at any time during the interview.

However, eleven minutes into the interview, questionable statements were made by

Burnett that Burnett maintains were requests for counsel . The pertinent portion of the

interview is as follows :

       Detective Hester:     . . . but we're talking about your son now and
                            whatever happened with the others, I don't,
                            you know, I wouldn't really expect much
                            remorse or concern for their well being, but
                            you're dealing with your own blood now and
                            I'm offering you an opportunity to do right by
                            your son, okay? So what went on? When did
                            all this start with [T.B.]?

       Burnett :            I don't know what to say. I don't know what
                            to say. 1 was always told that 1 wasn't
                            supposed to say nothing, not unless an
                            attorney was present. 1 don't know. I ain't
                            never been in an interrogation room . I don't
                            know what to say. (emphasis added) .

       Detective Hester:    Understand this, based on . . .

       Burnett :            I'm not really with the laws and stuff, I don't
                            know.. (emphasis added) .

      Detective Hester:     Well, like I told you before, and you've got, you
                            know, those rights, okay, but here's what's
                            gonna happen, okay. Based on what [T .B .]'s
                            told me, the things he's described, I'm
                            prepared to charge you today with the things
                                             2
                            that happened to [T.B.] And I can go to the
                            Commonwealth Attorney and I can say, you
                            know, obviously they're going to know about
                            your record, and I can say you got another one
                            here but he's repentant, he's sorry for this one,
                            and he wants to help his son get through it, for
                           the mistakes that he made. Or I can go back,
                           you know, and we can work out for running
                           stuff concurrent, you know, with whatever's
                           happening in Indiana or things like that. I can
                           somewhat advocate for you. Those decisions
                           are made by them and by the judge, and not by
                           me, but I can go in there and advocate for
                           some sort of deal where you don't do fifteen
                           (15) years and then, plus twenty-five (25) or
                           thirty (30), after you get done with that you
                           come back to Kentucky. I can work, you know,
                           let's do fifteen (15) that runs concurrent with
                           what he's gonna be facing up in Indiana and be
                           done with it. Or I can say that, you know, I
                           came in and I offered him an opportunity to
                           show remorse, and show repentance, and he
                           didn't take it. And we've gotta make sure that,
                           you know, he's only thirty (30), what thirty-six
                           (36), thirty-five (35)?

       Burnett :           Thirty-five (35).

       Detective Hester:   Fifteen (15), only makes you fifty (50) . I gotta
                           make sure you get another twenty-five (25) on
                           top of that so that you're at least seventy-five
                           (75) before the time you get out. That's where
                           we stand and . . . .

     Burnett:              I understand that. I'm just saying, 1 don't
                           want to do anything without the law.
                           (emphasis added) .

      At this point, a few seconds elapse without Detective Hester saying anything, and

then Burnett breaks down, begins crying and volunteers the following:

      Burnett:             I never meant to hurt my son . It just keeps
                           coming back . It just keeps coming back.

      Detective Hester:    You got some . .

      Burnett:             I swear I try to fight it, I try . . .
                                               3
          Detective Hester :   Uh huh.

          Burnett :            but it just keeps coming back. I pray to God
                               just make it stop, but it just keeps happening .

          At this point, Detective Hester begins talking about T.B. and what T.B . told him .

 Burnett makes no further reference to an attorney or "the law" and continues to provide

 more information about the offenses . Burnett ultimately made a written statement in the

 form of a letter to T .B . at the suggestion of Detective Hester. Detective Hester gave

 Burnett three breaks during the interrogation to have a drink of water, call his sister, and

write the letter. However, these breaks were all given after the above conversation took

place .

          On May 24, 2005, a hearing was held on Burnett's motion to suppress the

statements made to Detective Hester. Burnett argued that Hester violated his Miranda

rights when he failed to respect his invocation of his right to counsel . The main issue is

whether the statements Burnett made prior to his confession were sufficient to

constitute an invocation of his right to counsel.

          The trial judge watched a tape of the interrogation and found Burnett nodded

affirmatively when asked if he understood his Miranda rights as read by Detective

Hester. The judge recognized that on three different occasions, Detective Hester gave

Burnett the option to reconsider when he took a break, called his sister, and allowed

Burnett to write a letter. After each break, Burnett was the one to instigate the

conversation . The judge made a final ruling that Burnett "never indicated unequivocally

that he no longer wished to be questioned, and as a result, was not questioned in

violation of Miranda ." In reviewing a trial court's ruling on a suppression motion, the trial

court's findings of fact will be deemed conclusive if they are supported by substantial
 evidence. Adcock v. Commonwealth, 967 S .W.2d 6, 8 (Ky. 1998) ; Stewart v.

 Commonwealth , 44 S.W.3d 376, 380 (Ky.App. 2000); RCr 9.78. However, the tria l

 court's conclusions of law will be reviewed de novo. Id. : Welch v. Commonwealth, 149

 S. W.3d 407,409 (Ky. 2004) .

        Under the Fifth Amendment to the United States Constitution, no person "shall be

compelled in any criminal case to be a witness against himself . . . ." In Miranda v.

Arizona , 384 U .S. 436, 444, 86 S. Ct. 1602, 16 L. Ed . 2d 694 (1966), the United States

Supreme Court held that when an accused is interrogated while in police custody, he is

entitled to certain procedural safeguards to protect his constitutional right against self-

incrimination. The Miranda Court went on to delineate those procedural safeguards :

              Prior to any questioning, the person must be warned that he
              has the right to remain silent, that any statement he does
              make may be used as evidence against him, and that he has
              a right to the presence of an attorney either retained or
              appointed . The defendant may waive effectuation of these
              rights, provided the waiver is made voluntarily, knowingly
              and intelligently . If, however, he indicates in any manner
              and at any stage of the process that he wishes to
              consult with an attorney before speaking there can be
              no questioning. Likewise, if the individual is alone and
              indicates in any manner that he does not wish to be
              interrogated, the police may not question him . The mere fact
              that he may have answered some questions or volunteered
              some statements on his own does not deprive him of the
              right to refrain from answering any further inquiries until he
              has consulted with an attorney and thereafter consents to be
              questioned .

Id. at 444-45 (emphasis added) . One who seeks counsel "must articulate his desire to

have counsel present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney ." Davis

v. United States , 512 U .S . 452, 459, 114 S . Ct. 2350, 129 L. Ed. 2d 362 (1994) . The

request for counsel must be "unambiguous and unequivocal ." Dean v. Commonwealth ,
 844 S.W.2d 417, 420 (Ky. 1992) ; see also Jackson v. Commonwealth, 187 S.W.3d 300,

 306 (Ky. 2006) (using a "clear and unequivocal" standard) . "[I]f 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 counsel, our precedents do not require the cessation of

questioning ." Davis, 512 U.S . at 459.

       Burnett argues that when he told Detective Hester:

              I don't know what to say. I was always told that I wasn't
              supposed to say nothing, not unless an attorney was
              present. I don't know. I ain't never been in an interrogation
              room, I don't know what to say . . . . I'm not really with the
              laws and stuff, I don't know[,]

he was attempting to invoke his right to counsel . Burnett maintains that Detective

Hester should have stopped the interrogation at that point, and asked Burnett if he was

invoking his right to counsel . Rather than stopping, the interview continued, and Burnett

asserts that he was then badgered into giving a statement. Burnett claims that his

subsequent statement "I don't want to do anything without the law," was also an

expression of his desire for counsel to be present during the interrogation . Burnett

argues that at both points in the interview, his requests for counsel were unambiguous

and unequivocal, and yet Hester continued to question him. Therefore, allowing the

confession would be in direct violation of his Fifth and Fourteenth Amendment right to

have counsel present during a custodial interrogation .

       The Commonwealth contends that the statements at issue by Burnett were

neither unambiguous nor unequivocal and thus did not constitute an invocation of his

right to counsel . Hence, it was reasonable for Detective Hester to continue the

interrogation . However, in the alternative, the Commonwealth argues that if this Court
 adjudges that Burnett did invoke his right to counsel with his statements early on in the

 interview, he subsequently waived that right when he broke down and voluntarily

 confessed not in response to any further questioning by Detective Hester.

        As to Burnett's first statement:

               I don't know what to say. I was always told that I wasn't
               supposed to say nothing, not unless an attorney was
               present. I don't know. I ain't never been in an interrogation
               room, I don't know what to say. . . . I'm not really with the
               laws and stuff, I don't know[,]

Detective Hester testified at the hearing that he interpreted that statement as Burnett

being unsure about whether he wanted an attorney . We agree that this statement did

not constitute an unambiguous and unequivocal request for counsel . Although Burnett

used the word "attorney", his statement was an expression of uncertainty about whether

he wanted or needed an attorney, which would at best be ambiguous and equivocal .

This case is akin to Dean , 844 S .W.2d at 419, wherein during interrogation, the accused

inquired, "[S]hould I have somebody here? I don't know." This Court held that such a

statement was not sufficiently unambiguous and unequivocal to invoke the accused's

right to counsel . Id. at 420. Likewise, in Davis , 512 U .S. at 455-59, the statement,

"Maybe I should talk to a lawyer" was held not to be an unambiguous and unequivocal

request for counsel . Accordingly, in the instant case, it was not improper for the

detective to continue speaking to Burnett after this statement.

       When asked at the hearing what Burnett meant by his second statement "I don't

want to do anything without the law," Burnett responded by saying, "I was, I guess

wanting to have me an attorney there when I insinuated to him . . . I kind of got choked

up at the same time, but I was asking for an attorney ." Detective Hester stated that he

did not take that statement as a request for an attorney. Hester testified that he "wasn't
 sure what exactly he meant by that. He immediately went into beginning his

 confession ." In our view, the statement "I don't want to do anything without the law,"

 when coupled with his earlier reference to an attorney, was a sufficiently clear

 expression of Burnett's desire for an attorney, and a reasonable officer would have

 understood that the accused wanted to consult with an attorney before he said anything

 else . Although Burnett used the word "law" and not "attorney" or "lawyer", we

 nevertheless believe a reasonable police officer would have known under the

 circumstances that Burnett wanted to consult with an attorney before giving a

 statement. Detective Hester had already testified that he was aware that Burnett was

 unsure about whether he wanted an attorney from Burnett's first statement. And, unlike

 Burnett's first statement questioning whether he wanted or needed an attorney, this

 second statement did not express any uncertainty . "[A] suspect need not speak with the

discrimination of an Oxford don." Davis , 512 U.S . at 459 (citation omitted) . Thus, the

trial court erred in its legal conclusion that Burnett did not make an unequivocal request

to speak to a lawyer. However, we view this error as harmless because we adjudge

that Burnett subsequently waived his right to counsel when he immediately thereafter

made a spontaneous confession to the crime . RCr 9.24.

       Once a defendant invokes his Miranda right, all questioning of the suspect must

cease unless the suspect himself "initiates" further communication . Edwards v. Arizona,

451 U .S 477, 484-85, 101 S . Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981) . "When an

accused has invoked his right to have counsel present during custodial interrogation, a

valid waiver of that right cannot be established by showing only that he responded to

police-initiated interrogation after being again advised of his rights ." Id . at 477. In order

to establish a valid waiver of the right to counsel "the accused himself [must] initiate[]
 further communication, exchanges, or conversations with the police ." Id . at 484-85 . If

 the accused speaks after invoking his right to counsel, the two-part test set out in Smith

 v. Illinois , 469 U .S . 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984), is applied to determine

whether the subsequent statement constituted a waiver of the invocation of the right to

counsel. Smith v. Commonwealth, 920 S.W.2d 514, 517 (Ky. 1995). The two-part test

 requires the court to first identify whether the accused actually invoked his right to

counsel, and secondly, "if the accused invoked his right to counsel, courts may admit

his responses to further questioning only on finding that he (a) initiated further

discussions with the police, and (b) knowingly and intelligently waived the right he had

invoked." Smith , 469 U .S . at 95.

       Burnett contends that after he invoked his right to counsel, he did not thereafter

waive the right by initiating further discussion with Detective Hester, because the

statement was given in response to the previous pressured and overreaching

questioning by the detective. Burnett also maintains that when he broke down and

confessed, he was not knowingly and intelligently waiving the right he had just invoked .

       In viewing the interrogation, after Burnett's statement that he did not "want to do

anything without the law," there is a short pause during which Detective Hester says

nothing. It is only after Burnett breaks down and states that he did not mean to hurt his

son and that it just keeps coming back, that Detective Hester begins speaking again .

       In determining whether the accused initiated the conversation pursuant to the

two-part test in Smith v. Illinois, this Court has interpreted "initiated" in the ordinary

sense of the word . Smith, 920 S.W.2d at 518 (citin      Oregon v. Bradshaw , 462 U .S .

1039, 1045, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 405, 412 (1984)). During the

interrogation in Skinner v. Commonwealth, 864 S .W .2d 290 (Ky. 1993), the officer
 ceased questioning after the accused invoked his right to counsel, but shortly thereafter,

 the accused made incriminating statements about the crime not in response to

 questioning . This Court affirmed the denial of the suppression motion, adjudging that

 the accused initiated the conversation when he volunteered statements that were not in

 response to interrogation. Id. at 295; see also Cummings v. Commonwealth , 226

 S .W .3d 62, 65-66 (Ky. 2007). Similarly, in the present case, when Burnett became

emotional and made the incriminating statements at issue - that he didn't mean to hurt

his son and that it just keeps coming back - the statements were not in response to a

question by Detective Hester. As stated above, as soon as Burnett stated he did not

want to do anything without the law, Detective Hester said nothing more until after

Burnett broke down and made the initial incriminating statements .

        As to Burnett's claim that the statement was not made knowingly and

intelligently, the record refutes this claim. Burnett was read his Miranda rights and

acknowledged that he understood those rights . See Ragland v. Commonwealth , 191

S.W.3d 569, 586 (Ky. 2006).

        For the reasons stated above, the judgment of the Fayette Circuit Court is hereby

affirmed .

       All Sitting. Lambert, C .J ., Abramson, Schroder, and Scott, JJ ., concur. Noble, J.,

concurs in result only by separate opinion in which Cunningham and Minton, JJ., join .
COUNSEL FOR APPELLANT :


Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General of Kentucky

Michael A . Nickles, Jr.
Assistant Attorney General
Room 118
Capitol Building
Frankfort, KY 40601
                                                          RENDERED : MARCH 20, 2008
                                                              NOT TO BE PUBLISHED



             ,Sixyrrxrrr Court of 'RrufuxhV
                                   2005-SC-000820-MR

ROBERT HOWARD BURNETT II                                                     APPELLANT


                    ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                   HONORABLE PAMELA GOODWINE, JUDGE
                               NO. 05-CR-000207


COMMONWEALTH OF KENTUCKY                                                      APPELLEE

                             OPINION BY JUSTICE NOBLE

                           CONCURRING IN RESULT ONLY

       The majority finds that the Appellant did make an "unambiguous and

unequivocal" request for an attorney during his interrogation, but that he waived that

right by immediately volunteering incriminating statements that were not in response to

police questioning . I agree that Appellant voluntarily made the statements to police, and

thus there is no error. However, given that his "request" for an attorney was not direct,

and could only be inferred if several of his statements are read together, I cannot say

that there was a clear request for an attorney under the facts of this case. Further,

given that such a request was lacking, Officer Hester could have continued questioning

Appellant, but either did not or just did not have time to continue questioning because

Appellant immediately caved and started making incriminating statements . There is

thus no need for this Court to engage in a discussion of whether he requested an

attorney, because this is not germane to the resolution of the case, and may be viewed

as an extension of the case law on what is "unambiguous and unequivocal"-words that

have strong and clear meaning that this application clouds. If reasonable minds could
differ on whether a request for an attorney had been made, the language is perforce

ambiguous or equivocal . In fairness to an interrogating officer, it must be understood

that the officer is responding to the last statement made by a witness, not the entire

context of what has been said over the course of the whole exchange, as we have the

luxury of doing . It is, unequivocally, better practice to err on the side of giving access to

counsel during interrogations, but the law does not require that questioning cease when

a suspect "might be invoking the right to counsel . . . ." Davis v. United States , 512 U.S .

452, 459, 114 S .Ct. 2350, 2355, 129 L.Ed.2d 362, (1994); Ragland v. Commonwealth ,

191 S .W.3d 569, 586-87 (Ky. 2006).

       Cunningham and Minton, JJ ., join.
