                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                      May 6, 2003 Session

                 STATE OF TENNESSEE v. GERALD E. SAYLOR

                  Appeal by Permission from the Court of Criminal Appeals
                          Criminal Court for Washington County
                           No. 25854     Lynn W. Brown, Judge



                   No. E2001-00604-SC-R11-CD - Filed September 30, 2003


ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

        I concur in the majority’s decision to affirm the defendant’s conviction, but I respectfully
dissent from the conclusion that the defendant did not make an unequivocal request for counsel.
When a suspect invokes the right to counsel, police must cease questioning until counsel is present.
State v. Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996). A defendant “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
(1994).

        I have no quibble with the above statement of law. Thus, my concern is that the facts do not
support the conclusion reached by the majority. Specifically, I find the defendant’s statements and
questions sufficiently clear to cause a reasonable officer, under the circumstances, to understand that
the defendant wanted a lawyer. It appears, however, that the officer simply chose to ignore the
defendant’s repeated requests. During the interrogation, the defendant refused to answer a question
about his parole, and instead he stated, “Well . . . I guess it don’t matter until I can get a lawyer
present.” He then asked, “I’m supposed to have a lawyer though, don’t I?” Instead of answering the
defendant, the officer appeared to evade the questions and replied, “Hmmm?” The defendant again
stated, “I have to have a lawyer present, I reckon’. Before you ask me.” Again, the officer evaded
the question by saying, “What’s that?” Finally, the defendant stated, “You have to have a lawyer
present before questioning.” The officer merely responded that he had not asked the defendant any
questions. The defendant later signed a Miranda waiver, but he maintained that he did not wish to
waive his rights.

       It is abundantly clear from the exchange between the defendant and the officer that the
defendant was requesting an attorney. The defendant made at least four statements regarding the
presence of an attorney. It seems, however, that the officer simply chose to disregard the defendant’s
requests.
       Based on what I interpret as a clear request for an attorney, I conclude that the statement the
defendant made to police should have been suppressed as having been obtained in violation of his
Fifth Amendment right to counsel. Based on the overwhelming evidence against the defendant,
however, I concur with the majority that sufficient evidence was presented to convict the defendant
of voluntary manslaughter.


                                                       _______________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE




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