...the invocation of the right to counsel must be clear, unambiguous, and unequivocal. In Davis v. United States, 512 U.S. 452, 459 (1994), the Court held that
{a}s we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Smith v. Illinois, 469 U.S. 91, 97-98 (1984). An accused 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. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.
Here, the question is whether Zektaw's statement “Right, and I'd really like to talk to a lawyer because this — oh my God, oh, my Jesus, why?” under an objective, “reasonable police officer” test was a clear, unambiguous, unequivocal request for counsel.
Since Miranda and Edwards, we have reviewed several cases to determine whether a defendant's statement clearly, unambiguously, and unequivocally invoked his right to counsel. In some cases the defendants' statements were determined to be questions seeking clarification of their rights. See Hilliard, 270 Va. at 51, 613 S.E.2d at 585 (“‘Can I have someone else present too, I mean just for my safety, like a lawyer like y'all just said?’” was not an unequivocal request for counsel); Commonwealth v. Redmond, 264 Va. 321, 330, 568 S.E.2d 695, 700 (2002), cert. denied, 538 U.S. 930 (2003) (“‘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”); Mueller v. Commonwealth, 244 Va. 386, 396, 422 S.E.2d 380, 387 (1992), cert. denied, 507 U.S. 1043 (1993) (“‘Do you think I need an attorney here?’” did not constitute a request for counsel); Eaton v. Commonwealth, 240 Va. 236, 250, 252, 397 S.E.2d 385, 393, 395 (1990), cert. denied, 502 U.S. 824 (1991) (“You did say I could have an attorney if I wanted one?” was equivocal); and Poyner v. Commonwealth, 229 Va. 401, 410, 329 S.E.2d 815, 823, cert. denied, 474 U.S. 865 (1985) (“‘Didn't you say I have the right to an attorney?’ . . . was not a request for counsel . . . {a}t most, it sought to clarify one of the rights of which he had already been advised”).
In Hilliard we held that the defendant's request that he “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” did not “‘clearly and unambiguously communicate a desire to invoke his right to counsel.’” 270 Va. at 52, 613 S.E.2d at 585-86. We also held that a defendant's statement that “‘he felt like he might want to talk to a lawyer’ . . . was couched in ambiguous terms to the effect that he might want to talk to a lawyer.” Bunch v. Commonwealth, 225 Va. 423, 430, 433, 304 S.E.2d 271, 275, 276, cert. denied, 464 U.S. 977 (1983). Additionally, we have held that “‘I'll be honest with you, I'm scared to say anything without talking to a lawyer” is an expression of a defendant's “reservation about the wisdom of continuing the interrogation without consulting a lawyer; however, it does not clearly and unambiguously communicate a desire to invoke his right to counsel.” Midkiff v. Commonwealth, 250 Va. 262, 265, 267, 462 S.E.2d 112, 114, 115 (1995). Finally, the United States Supreme Court held that “‘Maybe I should talk to a lawyer’ — was not a request for counsel.” Davis, 512 U.S. at 462.
However, in Hilliard additional statements by the defendant were considered. We held that when the defendant stated “‘Can I get a lawyer in here?’” and the detective responded, “‘Do you want to do that?’” and the defendant then said “‘I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up’” was a clear invocation of the defendant's right to counsel. 270 Va. at 52, 613 S.E.2d at 586.
In Smith v. Illinois, 469 U.S. 91 (1984), the United States Supreme Court considered a case in which the police officer said, “‘You have a right to consult with a lawyer and to have a lawyer present with you when you're being questioned. Do you understand that?’” and the defendant responded, “‘Uh, yeah. I'd like to do that.’” Id. at 93. The Court held that such an exchange was an unambiguous invocation of the right to counsel. See id. at 92. Additionally, the United States Supreme Court also held in Edwards that the defendant sufficiently invoked his Miranda rights when he stated “I want an attorney before making a deal.” 451 U.S. at 487, 479.
The Commonwealth argues that Zektaw's statement, “Right, and I'd really like to talk to a lawyer because this — oh my God, oh my Jesus, why?,” was ambiguous and equivocal. Specifically, the Commonwealth contends that Zektaw's statement was ambiguous and was not a clear assertion of his right to counsel because “{t}here were no pauses between Zektaw's various phrases; it was just one long sentence, and afterward the conversation between Detective Hein and Zektaw continued. The defendant made no further mention of having an attorney present. He continued asking questions and his level of talkativeness never varied.” We do not agree.
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) I can see the fact of you taking pictures being twisted so as to present you as having a callous disregard for human life.
