                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Senior Judge Bumgardner
Argued at Richmond, Virginia


CAVELL DEVON WEST
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0120-07-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                    MAY 20, 2008
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                            William R. Shelton, Judge Designate

                 Matthew T. Paulk (Matthew T. Paulk, P.C., on brief), for appellant.

                 Rosemary V. Bourne, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Cavell Devon West (“West”) appeals his convictions for murder in the first degree, in

violation of Code § 18.2-32, breaking and entering while armed with a deadly weapon, in

violation of Code § 18.2-89, and two counts of use of a firearm in the commission of a felony, in

violation of Code § 18.2-53.1. West confessed his crimes to the police, but he claims that the

trial court erred by admitting that confession because it was the result of an unconstitutional

interrogation. West claims that the officers interrogating him denied his request for an attorney,

in violation of his rights under the Fifth Amendment to the United States Constitution. Because

West made no unequivocal request for an attorney prior to confessing to his crimes, we hold that

the trial court did not err by admitting West’s confession into evidence.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                              Analysis

       “In reviewing a trial court’s ruling on a suppression motion, we consider the evidence in

the light most favorable to the prevailing party below, the Commonwealth in this instance,

granting to it all reasonable inferences fairly deducible therefrom.” Askew v. Commonwealth,

38 Va. App. 718, 722, 568 S.E.2d 403, 405 (2002).

       West argues on appeal that Officer Jeff Hinson (“Officer Hinson”) violated his right to

counsel and that the trial court erred by denying his motion to suppress. Whether a defendant

requested an attorney during a custodial interrogation is a mixed question of law and fact.

Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d 695, 697 (2002). As such, we defer

to the trial court’s findings of fact unless they are clearly erroneous. Id. at 327, 568 S.E.2d at

698. However, we review the trial court’s application of the Fifth Amendment to those facts de

novo. Id.

       In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court of the United States held

that when a suspect has “expressed his desire to deal with the police only through counsel,” he

may not be subjected to “further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Id. at 484-85. If the authorities continue the interrogation after

the suspect has invoked his right to counsel, the fruits of the subsequent interrogation are

inadmissible against the suspect at trial. Id. at 485.

       In order to invoke his right to counsel, a suspect must clearly and unequivocally request

an attorney. Davis v. United States, 512 U.S. 452, 454 (1994). “Although a suspect need not

‘speak with the discrimination of an Oxford don,’ he 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.” Id. at 459 (quoting id. at 476 (Souter,

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J., concurring in judgment)). “[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,” interrogation may continue. Id.

(emphasis in original). Moreover,

                 when a suspect makes an ambiguous or equivocal statement[,] it
                 will often be good police practice for the interviewing officers to
                 clarify whether or not he actually wants an attorney . . . .
                 Clarifying questions help protect the rights of the suspect by
                 ensuring that he gets an attorney if he wants one, and will
                 minimize the chance of a confession being suppressed due to
                 subsequent judicial second-guessing as to the meaning of the
                 suspect’s statement regarding counsel.

Id. at 461-62.

       West claims that he clearly and unequivocally invoked his right to counsel when he

stated: “I am willing to talk, but can I have a lawyer in here or something?” The Supreme Court

of Virginia has twice addressed very similar statements made in the context of a police

interrogation. Both cases are instructive.

       In Redmond, the Supreme Court of Virginia held that a suspect’s statement: “Can I

speak to my lawyer? I can’t even talk to [a] lawyer before I make any kinds of comments or

anything?” was not sufficient to invoke his right to counsel. Redmond, 264 Va. at 325, 568

S.E.2d at 697. After having reviewed a videotape of the interrogation contained in the record,

the Court concluded:

                 the defendant’s questions, “Can I speak to my lawyer? I can’t
                 even talk to [a] lawyer before I make any kinds of comments or
                 anything?” were not a clear and unambiguous assertion of his right
                 to counsel. Even though the circuit court in this instance did not
                 make specific factual findings, the historical facts such as the
                 context of the defendant’s questions, the tone of his voice, his
                 voice inflections, and his demeanor support the conclusion that this
                 defendant did not make a clear assertion of his right to counsel.




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                       At best, the defendant’s questions may be construed as a
               desire on his part to obtain more information about his Miranda
               rights.

Id. at 330, 568 S.E.2d at 700.

       In Commonwealth v. Hilliard, 270 Va. 42, 613 S.E.2d 579 (2005), the Supreme Court

reviewed a statement nearly identical to the one made by the defendant in Redmond. In Hilliard,

the Court held that a suspect’s statement, “Can I get a lawyer in here?” was sufficient to invoke

the suspect’s right to counsel. Id. at 46, 613 S.E.2d at 582. The difference between Hilliard and

Redmond was the context in which the statements were made. In Hilliard, when the suspect

stated, “Can I get a lawyer in here?” he had already made two earlier inquiries about a lawyer.

During the same interrogation, the suspect had said, “Can I have someone else present too, I

mean just for my safety, like a lawyer like y’all just said?” and “I would like to have somebody

else in here because I may say something I don’t even know what I am saying, and it . . . might

jam me up in some incidents, and I don’t want that to happen, man.” Id. The Court held that

“[w]hen viewed as a whole,” in light of “the context of the circumstances and the prior

statements,” the suspect’s “third alleged request . . . was an unequivocal request for counsel

stated with sufficient clarity that a reasonable police officer under the circumstances would have

understood the statements to be a request for counsel.” Id. at 52, 613 S.E.2d at 586.

       Here, the context of West’s request, “Can I get a lawyer in here or something?” is more

similar to the circumstances of Redmond than Hilliard. Like the suspect in Redmond, and unlike

the suspect in Hilliard, West made only one reference to an attorney and did so in the form of a

question rather than in the form of a statement requesting an attorney. That reference, on its

face, was not an unequivocal request for counsel. In its ruling, the trial court explained, “He is

saying, can I get a lawyer? He is not saying, I want a lawyer. . . . He didn’t say that.” The video

recording of the interview supports this finding. The statement’s context indicates that West did

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not make a clear and unequivocal request for an attorney. The tone of the interview, West’s

demeanor at the time of the statement, and Officer Hinson’s response to the statement all tend to

show that a reasonable police officer would have understood the statements to be a request for

information, not a request for counsel. When told that he would have to wait in jail until an

attorney arrived, West confessed and did not again mention an attorney. We see no reason to

construe his statement as anything more than a request for a clarification of his rights. As such,

it did not invoke his right to counsel.

                                            Conclusion

       Because West did not clearly invoke his right to counsel, Officer Hinson did not violate

West’s Fifth Amendment rights by continuing to interrogate him. Thus, we affirm the trial

court’s decision to deny West’s motion to suppress his confession.

                                                                                         Affirmed.




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