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Criminal – Voluntariness Of Confession – Request For Lawyer

Deborah Elkins//June 2, 2008

Criminal – Voluntariness Of Confession – Request For Lawyer

Deborah Elkins//June 2, 2008

A defendant who told police, “I am willing to talk, but can I have a lawyer in here or something?” did not unequivocally invoke his Fifth Amendment right to counsel, and the trial court did not err in refusing to suppress defendant’s confession to murder, the Court of Appeals holds.

The Supreme Court of Virginia has twice addressed very similar statements made in the context of a police interrogation, in Commonwealth v. Redmond, 264 Va. 321 (2002) and in Commonwealth v. Hilliard, 270 Va. 42 (2005). Both cases are instructive.

Here, the context of defendant’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, defendant here 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 defendant did not make a clear and unequivocal request for an attorney. The tone of the interview, defendant’s demeanor at the time of the statement and the officer’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 he would have to wait in jail until an attorney arrived, defendant 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.

Denial of motion to suppress affirmed.

West v. Commonwealth (Humphreys, J.) No. 0120-07-2, May 20, 2008; Chesterfield County Cir.Ct. (Shelton) Matthew T. Paulk for appellant; Rosemary V. Bourne, AAG, for appellee. VLW 008-7-245(UP), 5 pp.

VLW 008-7-245

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