N.C. Court of Appeals Rules That Defendant Did Not Make An Unambiguous Assertion of Right to Counsel Under Miranda to Bar Officer’s Custodial Interrogation

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The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling.

Background. The United States Supreme Court ruled in Smith v. Illinois, 469 U.S. 91 (1984), that when a defendant makes an unequivocal (clear) request for counsel, questioning must stop, and a defendant’s responses to additional interrogation conducted after the defendant made a clear request may not be used to cast doubt on the initial request for counsel. The Court ruled in Smith that when a defendant said, “Uh, yeah. I’d like to do that,” after being told of the right to counsel, that statement was a clear request for counsel—particularly because the defendant had mentioned earlier to the officers that a woman had told him to get a lawyer because they would railroad him.

On the other hand, the United States Supreme Court ruled in Davis v. United States, 512 U.S. 452 (1994), that if a defendant makes an equivocal reference to an attorney, an officer is not required to stop the interrogation if a reasonable officer under the circumstances only would have understood that the defendant might be invoking the right to counsel. An officer must stop an interrogation only when the defendant makes an unequivocal assertion of the right to counsel. The investigators in Davis gave the in-custody defendant Miranda warnings and received a proper waiver of his rights. About an hour and a half into the interrogation, the defendant said, “Maybe I should talk to a lawyer.” The investigators told the defendant that they did not want to violate his rights, that they would stop questioning him if he wanted a lawyer, and that they would not pursue the matter unless it was clarified whether he was asking for a lawyer or was just making a comment about a lawyer. The defendant said, “No, I’m not asking for a lawyer.” He then said, “No, I don’t want a lawyer.” After a short break, the investigators reminded the defendant of his rights to remain silent and to counsel. The defendant then made incriminating statements that he later sought to suppress at trial, arguing that the investigators violated their duty to stop the interrogation once the defendant had asserted the right to counsel. Based on these facts, the Court ruled that the defendant did not make an unequivocal request for counsel and, therefore, the investigators did not violate the defendant’s constitutional rights.

The Court in Davis noted that when a defendant makes an ambiguous or equivocal request for counsel, it often will be good law enforcement practice for officers to clarify whether or not the defendant wants a lawyer. Clarifying questions protect the defendant’s rights by ensuring that the defendant gets a lawyer if he or she wants one and minimize the risk of a confession being suppressed by later judicial second-guessing of the meaning of the defendant’s statement about counsel. But the Court reiterated that if the defendant’s statement is not an unequivocal request for counsel, officers are not obligated to stop interrogation.

For a more detailed discussion of assertion of the right to counsel under Miranda, see pages 543-44 (text) and 620-34 (case summaries) in Arrest, Search, and Investigation in North Carolina (4th ed. 2011) and pages 89 and 98 of the 2015 Cumulative Supplement.

State v. Taylor. During the officer’s initial interaction with the nineteen-year-old defendant, he asked to speak to his grandmother. The officer called the defendant’s grandmother from his phone and then handed his phone to defendant. While on the phone, the defendant told his grandmother that he called her to “let [her] know that [he] was alright.” From the defendant’s responses on the phone, it appeared that his grandmother asked him if the police had informed him of his right to speak to an attorney. The defendant responded, “An attorney? No, not yet. They didn’t give me a chance yet.” The defendant then responded, “Alright,” as if he was listening to his grandmother’s advice. The defendant then looked up at the officer and asked, “Can I speak to an attorney?” The officer responded: “You can call one, absolutely.” The defendant then relayed the officer’s answer to his grandmother: “Yeah, they said I could call one.” The defendant then told his grandmother that the police had not yet made any charges against him, listened to his grandmother for several more seconds, and then hung up the phone.

After the defendant refused to sign a Miranda waiver form, explaining that his grandmother told him not to sign anything, the officer asked, “Are you willing to talk to me today?” The defendant responded: “I will. But [my grandmother] said—um—that I need an attorney or a lawyer present.” The officer responded: “Okay. Well you’re nineteen. You’re an adult. Um—that’s really your decision whether or not you want to talk to me and kind-of clear your name ….” The defendant then interrupted: “But I didn’t do anything, so I’m willing to talk to you.” The defendant then orally waived his Miranda rights.

The court ruled that the defendant’s question—“Can I speak to an attorney?”— made during his phone conversation with his grandmother was “ambiguous whether defendant was conveying his own desire to receive the assistance of counsel or whether he was merely relaying a question from his grandmother.” The defendant’s later statement, “But [my grandmother] said—um—that I need an attorney or a lawyer present,” was “also not an invocation because it does not unambiguously convey defendant’s desire to receive the assistance of counsel” (quotation omitted). The court then noted: “A few minutes later, after [the officer] advised defendant of his Miranda rights, he properly clarified that the decision to invoke the right to counsel was defendant’s decision, not his grandmother’s.”

The court’s ruling relied in part on State v. Hyatt, 355 N.C. 642 (2002), which ruled that a defendant’s statements during interrogation that his father wanted him to have an attorney present and the defendant’s request to speak to his father did not constitute unambiguous requests for counsel. And the court distinguished the defendant’s reliance on contrary federal appellate cases because defendants in those cases did not make their requests within the context of simultaneous conversations with a third party, unlike defendant Taylor’s conversation with his grandmother.

Summary. It is difficult to state clear principles governing whether requests for counsel are unambiguous or ambiguous because they are so fact dependent. That is why it is instructive to read court rulings deciding each case (see the reference earlier in this post to the case summaries in Arrest, Search, and Investigation in North Carolina). But at least concerning advice to a defendant from third parties, such as close relatives, to request counsel, it generally will not constitute an unambiguous request unless the defendant makes clear to the officer that he or she adopts that request as well. Although not constitutionally required, an officer unsure whether a request is ambiguous would be wise to follow the advice in Davis and clarify whether a defendant wants a lawyer.

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