                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Alston
Argued at Chesapeake, Virginia


KIP ANTONIO MAJETTE
                                                               MEMORANDUM OPINION ∗ BY
v.     Record No. 0637-10-1                                     JUDGE WILLIAM G. PETTY
                                                                      JUNE 7, 2011
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                             H. Vincent Conway, Jr., Judge

                 Eric P. Korslund (Zoby & Broccoletti, P.C., on brief), for appellant.

                 Donald E. Jeffrey, III, Senior Assistant Attorney General (Kenneth
                 T. Cuccinelli, II, Attorney General, on brief), for appellee.


       Kip Antonio Majette appeals his convictions for first-degree murder, possession of a

firearm by a convicted felon, and use of a firearm during commission of a felony. Majette

assigns error to the trial court’s denial of his motion to suppress the statements he made to police

Detective W.T. Filer. Majette argues that prior to his interview with Detective Filer, he had

clearly, unambiguously, and unequivocally invoked his right to have counsel present during

interrogation by stating to Detective Daniel E. Gagne that he “would not speak to anybody other

than Detective Filer and his attorney.” Majette contends that a reasonable police officer under

the circumstances would have understood Majette’s statement to mean that he would speak with

Detective Filer only if his attorney were also present. For the reasons expressed below, we

disagree. Accordingly, we hold that the trial court did not err in denying Majette’s motion to

suppress. Therefore, we affirm Majette’s convictions.


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26

Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987)).

       Where, as here, “the parties [do] not dispute the content of [a defendant’s] statements to

the police” and the trial court thus makes no factual findings regarding the content of those

statements, we evaluate the trial court’s denial of a defendant’s motion to suppress based solely

on “a de novo review of the legal issue whether [the defendant’s] words, taken in context, were

sufficient to invoke his right to counsel.” Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d

579, 584 (2005).

       A suspect has the right to have an attorney present during custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 470 (1966). When a suspect invokes this right, “the

interrogation must cease until an attorney is present,” id. at 474, “unless the [suspect] himself

initiates further communication, exchanges, or conversations with the police,” Edwards v.

Arizona, 451 U.S. 477, 485 (1981). “[T]he determination whether [a suspect] actually invoked

his right to counsel is a purely objective inquiry.” Hilliard, 270 Va. at 50, 613 S.E.2d at 584.

“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.” Id. at 49, 613 S.E.2d at 584; see also Davis v. United States, 512

U.S. 452, 459 (1994) (originally setting forth this rule). “[T]he invocation of the right to counsel




                                                -2-
must be clear, unambiguous, and unequivocal.” Zektaw v. Commonwealth, 278 Va. 127, 136,

677 S.E.2d 49, 53 (2009).

       In order to determine whether a statement is sufficiently clear, unambiguous, and

unequivocal to constitute an effective invocation of a suspect’s right to counsel, we must

consider the words the suspect actually used, as well as the context in which he spoke those

words. Hilliard, 270 Va. at 50, 613 S.E.2d at 585. We do not consider any subsequent

statements made by the suspect to determine whether his alleged invocation was ambiguous.

Smith v. Illinois, 469 U.S. 91, 97 (1984). Rather, we look only to the alleged “request for

counsel [and] the circumstances leading up to [that] request.” Id. at 98. 1 Such a rule makes

perfect sense when one reflects that a reasonable police officer cannot know the future words or

actions of a suspect at the time the officer is confronted with the suspect’s present statement and

is forced at that moment to decide whether the suspect has unambiguously requested counsel.

       Here, after Majette had been arrested and placed in a police car, Detective Gagne asked

Majette for some of his personal information for booking purposes. At that time, Majette told

Detective Gagne “that he would not speak to anybody other than Detective Filer and his

attorney.” Detective Gagne relayed to Detective Filer that Majette had said “that he would only


       1
          Majette conceded below that he was not arguing that any of his later statements to
Detective Filer constituted an invocation of his right to counsel. Rather, Majette simply argued
that his initial statement to Detective Gagne that he “would not speak to anybody other than
Detective Filer and his attorney” effectively invoked his right to have counsel present for any
subsequent interrogation. Thus, because the only issue before us is whether this single statement
constituted an effective invocation, we do not consider any of Majette’s later statements that he
made to Detective Filer.
        Although Majette contends that the trial court erred in considering Majette’s subsequent
behavior in analyzing whether his initial statement to Detective Gagne was ambiguous, we note
that any such error on the part of the trial court is irrelevant to our analysis, since we review the
trial court’s legal conclusions de novo. See Hilliard, 270 Va. at 49-50, 613 S.E.2d at 584.
Accordingly, we limit our analysis simply to Majette’s alleged invocation, and we do not
consider any circumstances that followed his initial statement to Detective Gagne in evaluating
whether that statement was ambiguous.

                                                -3-
speak with him and his attorney,” and Detective Filer asked Detective Gagne to bring Majette to

police headquarters.

       The trial court concluded that Majette’s statement to Detective Gagne was not an

unambiguous invocation of Majette’s right to counsel. However, Majette argues that a

reasonable police officer in Detective Filer’s circumstances would have understood this

statement as indicating both that (1) Majette wished to speak only with Detective Filer, and

(2) Majette would speak with Detective Filer only if his attorney were also present. 2 We do not

agree that this is what Majette’s statement clearly and unambiguously communicated.

       It is perfectly natural to interpret Majette’s statement “that he would not speak to

anybody other than Detective Filer and his attorney” as expressing the idea that he would talk to

either of those two individuals, but to no one else. Majette’s statement does not clearly convey

the additional, discrete idea that he refused to talk with one of those individuals unless the other

were also present. A simple statement that a person will not speak with anyone except for two

named individuals is not equivalent to an assertion that that person further refuses to speak with

one of those individuals unless the other is also present.3 Thus, Majette’s statement did not

clearly, unambiguously, and unequivocally express a desire by Majette not to talk with Detective

Filer without his attorney present. A reasonable police officer in Detective Filer’s circumstances

would not necessarily have interpreted Majette’s words to mean that Majette desired his attorney


       2
         Majette argues that just because a suspect indicates a desire to talk to the police, this
does not mean that he cannot also simultaneously express a desire to have an attorney present
when he talks to the police. We agree that this is certainly possible for a suspect to indicate.
However, this observation simply begs the question of whether Majette actually expressed a
clear desire to have an attorney present when he talked to Detective Filer.
       3
          The trial court observed the distinction between these two ideas, offering some
examples to illustrate the point. As the trial court noted, the statement, “I will talk to my lover in
Buenos Aires and my wife,” does not mean that the speaker intends “to talk to them at the same
time.” Furthermore, the statement, “I am going to Norfolk and Virginia Beach,” does not mean
that the speaker is “going to be in both at the same time.”
                                                 -4-
to be present when he talked with Detective Filer. This is simply not what the language of

Majette’s statement unambiguously meant. Accordingly, Majette’s statement fails to meet the

legal test for invocation of the right to counsel.

        Thus, we hold that the trial court did not err in denying Majette’s motion to suppress, and

we therefore affirm Majette’s convictions.

                                                                                         Affirmed.




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