FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MARK J. DOVE                                 GREGORY F. ZOELLER
Dove & Dillon, P.C.                          Attorney General of Indiana
North Vernon, Indiana
                                             KARL M. SCHARNBERG
                                             AARON SPOLARICH
                                             Deputy Attorneys General
                                             Indianapolis, Indiana
                                                                             FILED
                                                                           May 14 2012, 9:12 am

                             IN THE
                                                                                  CLERK
                   COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




DANA L. LEWIS, JR.,                          )
                                             )
      Appellant/Defendant,                   )
                                             )
             vs.                             )      No. 40A01-1106-CR-276
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee/Plaintiff.                    )


                   APPEAL FROM THE JENNINGS CIRCUIT COURT
                        The Honorable Jon W. Webster, Judge
                           Cause No. 40C01-1004-FA-144


                                    May 14, 2012

                             OPINION – FOR PUBLICATION

BRADFORD, Judge
                                       INTRODUCTION1

       Appellant-Defendant Dana L. Lewis, Jr. appeals from the trial court’s denial of his

motion to suppress statements he made to Jennings County Sheriff’s Sergeant Karen

McCoy during a police interview regarding an alleged sex crime. Lewis argues that the

statements were obtained in violation of his Fifth Amendment right to counsel, which he

claims he unequivocally and unambiguously invoked by asking, “Can I get a lawyer?”.

Lewis contends that this question was sufficient, both standing alone and in light of the

totality of the circumstances, to invoke his Fifth Amendment right. The State argues that

Lewis was not entitled the right to counsel because his interview with Sergeant McCoy

did not constitute a custodial interrogation. We reverse and remand with instructions.

                         FACTS AND PROCEDURAL HISTORY

       On April 25, 2010, Lewis, then age twenty-two, was invited by Sergeant McCoy

to the Jennings County Sheriff’s Department to be interviewed regarding an alleged sex

crime involving a thirteen-year-old female victim. When Lewis arrived, Sergeant McCoy

informed Lewis that he was not under arrest and that he was free to leave at any time.

The interview took place in a locked room, and Sergeant McCoy also informed Lewis of

his Miranda rights, which Lewis acknowledged understanding. Sergeant McCoy then

began questioning Lewis about the alleged crime, and the following exchange occurred

after approximately ten minutes:




       1
            We held oral argument in this case on April 30, 2012, at Shortridge High School in
Indianapolis. We wish to thank counsel for the quality of their advocacy and the students, faculty, and
staff of Shortridge for their assistance and hospitality.


                                                  2
        [McCoy]: The thing is, is we can, I’ve got certain things that I know that.[] I
        know she had sex and there’s been, by law I had to do DNA swabbing when this
        happened. I had to do that.
        [Lewis]: Yeah.
        [McCoy]: So, what’s going to happen is and I don’t see, well, she knows that the
        DNA swabbing, okay she, since you’ve already been here, we already have your,
        [Lewis]: You’ve already got my DNA.
        [McCoy]: Right, and she knew when I took that from her, that she knew who’s
        [sic] DNA [that’s] going to show, so there’s no reason to lie to me.
        [Lewis]: She knows who it is, you know what I mean.
        [McCoy]: Right. Okay, so, let me put it to you this way, the testing came back
        with DNA with your DNA,[2] okay, just hear me out. That’s why I’m saying, let’s
        not prolong this and make this a, let me finish, let me finish. Let’s not make this
        into a huge ordeal.
        [Lewis]: Okay.
        [McCoy]: The thing that I need to know is whether or not it was consensual or
        not, whether you forced it. If it was consensual, you know, we just make a day of
        it.[3] Okay?
        [McCoy]: Yeah.
        [McCoy]: That’s why I just want you to be honest with me. That way we’re not
        here and trying, let’s just make it a done deal and be done with it, everybody just,
        [our day’s] over. Okay? So, if you had consensual sex because, then this is going
        to go into a long drawn out thing, okay because,
        [4]
            Lewis: Can I [get] a lawyer?

        2
          Sergeant McCoy acknowledged at the suppression hearing that the State had not, in fact,
recovered Lewis’s DNA from the victim.
        3
           Several times during the interview, Sergeant McCoy made statements that we see as strongly
implying that Lewis would not be prosecuted if the alleged sexual contact with the alleged victim had
been consensual. For Class A felony child molesting, the consent of the victim is, of course, irrelevant.
In our view, Sergeant McCoy’s statements came close to being promises of leniency, which may not be
used to extract or induce a confession. “A confession is inadmissible when obtained by a promise of
immunity or mitigation of punishment. The relevant inquiry is whether the challenged police conduct
induced a confession which was not freely self-determined.” Fowler v. State, 483 N.E.2d 739, 744 (Ind.
1985) (citation omitted).
        4
           The first part of this passage is drawn from the transcript of the suppression hearing as State’s
Exhibit 1, a video recording of the interview, was published. The portion following footnote 4 in the text
is drawn from the trial court’s order, which varies slightly from the same passage as it appears in the
transcript. In particular, the transcript of the hearing does not have Lewis saying “all right” when told that
he could have a lawyer. Based upon our review of the video recording of the interview, we conclude that
the partial transcription in the trial court’s order, which the trial court presumably generated following its
own review, appears generally to be the more complete and accurate. That said, our review of the video
recording also confirms that Lewis very clearly asked if he could “get” a lawyer, not if he could “have” a
lawyer, as indicated in the trial court’s order.


                                                      3
       McCoy: Sure, you can get a lawyer sure absolutely.
       Lewis: All right.
       McCoy: But if it’s consensual Dana, you know like I said teenagers make
       these accusations of force all the time.
       Lewis: Yeah.
       McCoy: OK but if you didn’t force her, and she consented to this that’s a
       whole different ballgame that I can work with.
       Lewis: I understand.
       McCoy: That’s..
       Lewis: Okay I understand.
       McCoy: …so if you want to get this cleared up today that’s up to you, I
       don’t want to drag this out.
       Lewis: I’m not under arrest or nothing?
       McCoy: You’re not under arrest at this time.
       Lewis: It was consensual.
       McCoy: It was consensual.
       Lewis: I’m not going to lie to you Karen.

Tr. pp. 16-17; Appellant’s App. pp. 16-17.

       Lewis continued to disclose details about the alleged crime for approximately five

minutes; then, Sergeant McCoy and Lewis conversed as follows:

       McCoy: And you’re okay talking about this without a lawyer? That’s
       right, correct?
       Lewis: As long as I’m not going to get in trouble or anything?
       McCoy: Well you’re not under arrest right now, we’re talking about it.
       You [k]now what I mean.
       Lewis: Well am I going to be under arrest.
       McCoy: That’s not up to me but if it’s consensual I have to make a call but
       many times I have to deal with this consensual stuff..and

Appellant’s App. p. 17.5

       Lewis was arrested two days later and charged with Class A Felony Child

Molesting.6      On August 5, 2010, Lewis filed a motion to suppress his interview


       5
            For the same reasons mentioned in footnote 3, this passage is drawn from the partial
transcription contained in the trial court’s order.
       6
           Ind. Code. § 35-42-4-3 (2009).


                                               4
statements to Sergeant McCoy, arguing that they were obtained in violation of his Fifth

Amendment right to counsel. A suppression hearing was held on the issue, where both

parties stipulated that “Lewis reasonably believed that he was in a custodial interrogation

and was not free to leave.” Appellant’s App. p. 33. Sergeant McCoy testified that the

inflection in Lewis’s voice when he asked, “Can I get a lawyer?” made his question

“seem[] like he was trying to clarify if he was allowed to have an attorney.” Appellant’s

App. p. 36.

       The trial court reviewed the videotaped interview and found that Sergeant McCoy

“answered [Lewis’s question] honestly, but before addressing it any further … she

proceeded to hurriedly extract a confession[.]” Appellant’s App. p. 18. The trial court

also accepted the parties’ stipulation that Lewis “reasonably believed he was in custody

at the time he was at the Jennings County Sheriff’s Department … as he was in a locked

secure room … and not free to leave.” Appellant’s App. p. 16. Ultimately, the trial court

denied Lewis’s motion: “Taken as a whole, this Court cannot say that Defendant’s

question, ‘Can I have a lawyer?’ was an unambiguous or unequivocal request or demand

for an attorney.” Appellant’s App. p. 18. The trial court’s denial is now before this court

on Lewis’s interlocutory appeal.

                            DISCUSSION AND DECISION

              Whether the Trial Court Erred in Denying Lewis’s Motion to
                Suppress the Statement He Made to Sergeant McCoy

       We review the denial of a motion to suppress “in a manner similar to other

sufficiency matters. We do not reweigh the evidence, and we consider conflicting



                                            5
evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we

will consider not only the evidence favorable to the ruling but also the uncontested

evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App.

2011).

         “The right to have counsel present during [custodial] interrogation ‘is

indispensible’ to the protection of the Fifth Amendment privilege against self-

incrimination.” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (quoting Miranda v.

Arizona, 384 U.S. 436, 469 (1966)). “When a suspect asserts his right to counsel during

custodial questioning, the police must stop until counsel is present or the suspect

reinitiates communication with the police and waives his right to counsel.” Id. at 492

(citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). Importantly, “the prosecution

may not use statements stemming from that interrogation unless it demonstrates the use

of procedural safeguards effective to secure [the suspect’s] privilege[.]” Davies v. State,

730 N.E.2d 726, 733 (Ind. Ct. App. 2000) (citing Miranda, 384 U.S. at 444), trans.

denied.

                             A. Whether Lewis was in Custody

         As an issue preliminary to Lewis’s appellate claims, the State asserts an alternative

basis for the trial court’s denial of Lewis’s motion to suppress. “The Court of Appeals

may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even

though it was not the reason enunciated by the trial court.” Scott v. State, 883 N.E.2d

147, 152 (Ind. Ct. App. 2008). The State argues that Lewis was not entitled to counsel

because he was not “in custody” when he made his statements to Sergeant McCoy.


                                               6
Therefore, Lewis’s question, “Can I get a lawyer?” even if unambiguous and

unequivocal, did not require that Sergeant McCoy cease her questioning.

       “Miranda and its progeny have ruled that the [Fifth Amendment] right to counsel

… accrues upon ‘custodial interrogation.’” Zook v. State, 513 N.E.2d 1217, 1220 (Ind.

1987) (quoting Miranda, 384 U.S. at 444). This is because the right is “meant to

overcome [that] inherently coercive and police dominated atmosphere[.]” Davies, 730

N.E.2d at 733 (citing Miranda, 384 U.S. at 444). “‘Custodial interrogation’” has been

explained to mean “‘questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any significant

way.’” Zook, 513 N.E.2d at 1220 (quoting Miranda, 384 U.S. at 444). “A defendant is

in custody if he is formally arrested or is subjected to restraints on his freedom such that a

reasonable person in defendant’s position would believe he is not free to leave.” Davies,

730 N.E.2d at 733. “[T]he only relevant inquiry is how a reasonable man in the suspect’s

position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442

(1984).

       The State argues that its stipulation that “Lewis reasonably believed that he was in

a custodial interrogation” does not address the objective standard of what a reasonable

man in the suspect’s position would have understood. Appellant’s App. p. 16; see Miller

v. State, 846 N.E.2d 1077, 1081 (Ind. Ct. App. 2006) (“Whether an individual is

determined to be ‘in custody’ requires application of an objective test that asks whether a

reasonable person under the same circumstances would believe that he was under arrest




                                              7
or not free to resist the police.”), trans. denied.      Therefore, the State argues, the

stipulation as to Lewis’s subjective belief has no bearing on this issue. We cannot agree.

       We conclude that the stipulation below now binds the State on the question of

whether Lewis was in custody. First, we note that the stipulation was not that Lewis

subjectively believed himself to be in custody, but that he reasonably believed himself to

be in custody. In our view, given that the standard is one of reasonable belief, the use of

the word “reasonably” sufficiently invokes the proper objective standard. Moreover, it

seems abundantly clear that the State intended to stipulate that Lewis was in custody,

regardless of the wording of the stipulation. Finally, it is entirely possible that Lewis (or

indeed, the State) could have come forward with additional evidence touching on the

issue of custody, but did not do so due to the stipulation.         It could potentially be

extremely unfair to one party or the other to now address the issue on the merits. We

conclude that the stipulation that Lewis reasonably believed himself to be in custody

forecloses evaluation of the custody issue on appeal.

                           B. Invocation of Right to Counsel

       Lewis argues that his question, “Can I get a lawyer?” was an invocation of his

Fifth Amendment right to counsel and required Sergeant McCoy to cease her

questioning. “Invocation of the Miranda right to counsel requires, at a minimum,

some statement that can reasonably be construed to be an expression of a desire for

the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994).

“[W]hile the suspect need not invoke any magic words,” Jolley, 684 N.E.2d at 492

(citing Davis 512 U.S. at 459), “[t]he cessation of police questioning is not required


                                             8
‘if a suspect makes a reference to an attorney that is ambiguous or equivocal[.]’”

Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010) (quoting Davis 512 U.S. at 459). A

statement is considered ambiguous or equivocal when “‘a reasonable officer in light

of the circumstances would have understood only that the suspect might be invoking

the right to counsel.’” Id. (quoting Davis 512 U.S. at 459).

        Lewis contends that his question, “Can I get a lawyer?” constituted an

unequivocal invocation of his Fifth Amendment right to counsel. We agree. Lewis

relies primarily on United States v. Lee, in which the United States Court of Appeals

for the Seventh Circuit determined a suspect’s question, “Can I have a lawyer?” to be

“similar to [other] statements recognized by th[e] court as proper invocations of the

right to an attorney.” 7 413 F.3d 622, 626 (7th Cir. 2005). The Lee court concluded,

“unless the police obtained further clarification from [the suspect] that this was

actually an unequivocal request for an attorney, they should have halted the

interrogation.” Id. We see no reason to depart from the Lee court’s holding in this

case, which involves an essentially identical question posed by the defendant. Much

as the question, “Can I get the car tonight?” would be universally understood as a

request to borrow the car tonight, and not as a theoretical question regarding one’s

ability to borrow the car tonight, we have little trouble concluding that Lewis’s




        7
           The comparative statements in Lee were first recognized in Lord v. Duckworth, 29 F.3d 1216
(7th Cir. 1994). There, they were cited from Eleventh and Ninth Circuit cases and included the following:
“I think I should call my lawyer”; “I have to get me a good lawyer, man. Can I make a phone call?”;
“Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk
to a lawyer. Are you looking at me as a suspect?” Lee, 413 F.3d at 626 (citing Lord, 29 F.3d at 1221).


                                                    9
question would be understood by any reasonable police officer as an unequivocal

request for counsel.

      The State relies on Powell v. State, 898 N.E.2d 328 (Ind. Ct. App. 2008), trans.

denied, in arguing that Lewis’s question, “Can I get a lawyer?” was ambiguous. In

Powell, a man arrested for drug possession asked, “Could I see about getting a lawyer

or something man?” during custodial interrogation. Id. at 332. This court concluded

that the wording of this question was “ambiguous and not sufficiently clear as to

constitute a request for an attorney.” Id. at 337. Powell, however, is distinguishable.

First, a great deal of the ambiguity of the suspect’s question in Powell stems from the

use of the verb “could.” 898 N.E.2d at 332. “Can means ‘to be able to’ and expresses

certainty…. Could is better for a sense of uncertainty or a conditional statement.”

THE CHICAGO MANUAL OF STYLE sec 5.220, at 270 (16th ed. 2010) (emphases added).

The use of “could” by the suspect in Powell, therefore, may be interpreted as an

expression of doubt regarding the suspect’s intent to request an attorney, whereas

Lewis’s use of “can” in asking, “Can I get a lawyer?” is more reasonably interpreted

as an intentional request for such. See Taylor v. State, 689 N.E.2d 699, 703 (Ind.

1997) (finding the statement, “I guess I really want a lawyer, but, I mean, I’ve never

done this before so I don’t know,” to be an expression of doubt, not a request); see

also Davis, 512 U.S. at 462 (finding the statement, “Maybe I should talk to a lawyer”

to be an ambiguous request for counsel).        Furthermore, the uncertainty of the

suspect’s question in Powell seems to be emphasized by the question’s closing phrase,




                                          10
“or something.” 898 N.E.2d at 332. This additional factor is not present in Lewis’s

question. The State’s reliance on Powell is unavailing.8

                                           CONCLUSION

        Pursuant to the stipulation entered into by the parties below that Lewis reasonably

believed that he was in custody, we will not revisit the issue on appeal. Moreover, the

trial court erred in denying Lewis’s motion to suppress the statements he made to

Sergeant McCoy because Lewis unambiguously and unequivocally invoked his Fifth

Amendment right to counsel by asking, “Can I get a lawyer?” We therefore remand with

instructions to grant Lewis’s motion to suppress statements made during the interview

with Sergeant McCoy and for further proceedings.

        The judgment of the trial court is reversed and remanded with instructions.

ROBB, C.J., and FRIEDLANDER, J., concur.




        8
            We need not address Lewis’s argument that Sergeant McCoy should have asked Lewis to
clarify whether his allegedly ambiguous and equivocal question was intended as an invocation of his Fifth
Amendment right to counsel. Lewis concedes that the law currently does not require clarifying questions.
However, he asserts that the Indiana Supreme Court has adopted the U.S. Supreme Court’s position
concerning good police practice and the use of clarifying questions, see Jolley, 684 N.E.2d at 492 (citing
Davis 512 U.S. at 461), and he urges this court to declare the practice mandatory on public policy
grounds. Having concluded that Lewis’s question was an unequivocal request for counsel, we need not
address this argument but merely observe, as the United States Supreme Court has, that “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.” Davis, 512 U.S. at 461.


                                                   11
