In 2009, police arrived at a house fire and were told by witnesses that Nancy Downey was seen walking away from the home and carrying a large full bag right before the fire began. Downey, who was found at her brother’s home, admitted to being in the the home earlier that evening and a bag of stolen items from the burned home was found under a bed in his home. Downey was arrested.
The officer Mirandized her and then said he was going to try and get a bond set to get her out of jail. Downey, who was intellectually disabled and illiterate, said she had a lawyer. When asked who, she said it was Brad Sullivan who works at Trustmark bank.
The officer asked if she wanted to use Sullivan and she said, “I could use him.” The officer then asked how he represented her and she said she used him for a prior car accident. The officer told her that he didn’t know if he could get Sullivan here right now and asked if she wanted to wait or talk to him now.
Downey then said she would talk with police and confessed. She was convicted of burglary and arson and sentenced to 12 years. On appeal, she argued she invoked counsel so the interview should have stopped. MSC agreed with Downey and reversed.
If the defendant invokes her right to counsel, the interrogation must cease until an attorney is present. Once a defendant asks for counsel, she cannot be interrogated further until counsel has been made available, unless the accused herself initiates further communication, exchanges, or conversations with the police.
When there is ambiguity in the request for counsel, we said in Holland v State, 587 So. 2d 848 (Miss. 1991), that this court applies a three step test to determine whether or not she invoked counsel: (1) whether counsel was ambiguously requested; (2) if the request for counsel was ambiguous, whether the appropriate questions to identify the counsel requested were asked; and (3) if the interrogation continued without counsel, whether there was a valid Miranda waiver.
The dissent argues that we should follow the United States Supreme Court decision in Davis v. United States, 512 U.S. 452 (1994), which held that a suspect “must unambiguously request counsel,” and that law enforcement officers are not required to cease questioning based on an ambiguous request for counsel. We disagree.
Davis does not require Mississippi to follow the minimum standard that the federal government has set for itself. We are empowered by our state constitution to exceed federal minimum standards of constitutionality and more strictly enforce the right to counsel during custodial interrogations.
We find that, when Downey stated that she had an attorney and “could use him,” all interrogation was required to cease except questioning for the purpose of clarifying the request for counsel. A defendant is not required to use specific language such as “I want a lawyer,” in order to invoke the right to counsel.
Here, the officer represented to Downey that her attorney could not be brought to the jail “right this minute.” The officer’s comments to Downey also attempted to link her participation in the interrogation to the process of setting bail and suggested that her talking to the officer was a prerequisite to that process.
Further, the standard in providing counsel does not depend on the expediency with which a law enforcement officer may secure counsel for the accused. The officer in this case overstepped the limits of proper clarification by emphasizing the amount of time and difficulty that would be involved in obtaining counsel for Downey.
It was only after the officer told Downey that her attorney could not get there “right this minute” that she acquiesced in talking with the officer. Even then, the officer did not reiterate that Downey had a right for her counsel to be present during the continued conversation.
MSC has since decided Saddler wherein they said that it is still good police practice to ask clarifying questions when the subject makes ambiguous requests to remain silent and/or to obtain an attorney. However, they have said they will now follow U.S. Supreme Court case Davis v. United States, 512 U.S. 452 (1994), which holds that the right to counsel can only be legally asserted by an unambiguous or unequivocal request for counsel.