stating that “[e]ncompassed within these constitutional provisions [of the Fifth Amendment to the United States Constitution and article 1, section 9 of the Tennessee Constitution] is the right to counsel, which is applicable whenever a suspect requests that counsel be present during police-initiated custodial interrogation”
How later courts described this case
- stating that “[e]ncompassed within these constitutional provisions [of the Fifth Amendment to the United States Constitution and article 1, section 9 of the Tennessee Constitution] is the right to counsel, which is applicable whenever a suspect requests that counsel be present during police-initiated custodial interrogation”
- holding that the defendant’s statement “I’m supposed to have a lawyer though, don’t I?” and “You have to have a lawyer present before questioning” were not unequivocal requests for an attorney when made to the non-interrogating officer and prior to the defendant being given Miranda warnings
- holding that the trial court’s erroneous exclusion of evidence that the victim made a threat against the defendant on the day of the victim’s death was harmless in light of other evidence presented at trial that the victim was the first aggressor
- concluding that victim’s statement to a third party on the day of his death that he would kill the defendant, a social acquaintance, was admissible and relevant to prove the victim’s being the aggressor
Written by the judges who cited it.
The opinion
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 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (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 po *252 lice 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.