Opinion

State of Tennessee v. Gerald E. Saylor

Court
Tennessee Supreme Court
Filed
Sep 30, 2003
Status
Published
On the bench
Justice E. Riley Anderson
Cited by
0 cases
Authority
More cited than 29.6%

The opinion

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

-2-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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