Facts
In 2006, Corey Mallory observed a little girl pushing a bicycle and then noticed a blue Nissan car quickly pull up beside her. Mallory thought the encounter appeared suspicious, so he turned around to check on the little girl to ensure her safety.
He saw the bicycle lying in the cemetery, but the little girl was by then gone. Mallory became alarmed and followed the blue car, and questioned the driver, who later was identified as Stephen Delashmit. Delashmit initially replied that he did not know what Mallory was talking about. Delashmit pulled off, but Mallory continued to follow him and called 911 to report the incident.
Sergeant Robbie Gwin of the Lee County Sheriff’s Department arrived at the scene and saw a little girl’s bicycle on the ground. A woman arrived on the scene and identified the bicycle as belonging to her eight year old daughter, V.B. Then, V.B. returned to the scene with an adult woman and told officers what had transpired.
V.B. stated that she had stopped to fix the chain on her bicycle when she noticed a blue car pass by two or three times. The driver of the car pulled up beside her and asked for directions. The driver then asked V.B. to get in the car with him, and he offered her fifty dollars to have sex with him. The man already had his pants unzipped and showed the little girl his genital area. V.B. became scared and ran to her brother’s friend’s house, leaving her bicycle in the cemetery.
Delashmit was located at his work and Gwin asked him to step outside to speak with him in the parking lot. Gwin advised Delashmit of his Miranda rights and informed him why law enforcement wished to speak with him at that time. Gwin then waited for Lee County Sheriff Jimmy Howell Johnson to arrive.
After arriving at the scene, Sheriff Johnson approached Delashmit and ensured that he had been read his Miranda rights and fully understood them. Due to weather conditions and their location in a workplace parking lot, Johnson asked Delashmit to speak with him in the back seat of a patrol car. Once inside the car, Johnson personally re-read Delashmit his Miranda rights.
Delashmit admitted that he had offered the little girl, V.B., fifty dollars for sex and had shown her his penis. Delashmit was then placed under arrest and transported to the Lee County jail.
At the jail, Investigator Donna Franks again advised Delashmit of his Miranda rights, and Delashmit executed a waiver of rights form. When Delashmit said he preferred an attorney, Franks asked several clarifying questions to ensure that he wanted to talk to her without an attorney. Delashmit then agreed to talk to Franks without an attorney.
Delashmit again confessed to Franks that he had offered V.B. fifty dollars to have sex with him and demonstrated how he had shown her his penis.
Delashmit was convicted of having enticed, induced or solicited V.B., an eight-year-old child, for the purpose of engaging in sexually explicit conduct and sentenced to life as a habitual offender. On appeal, he argued 1) he was arrested without probable cause so his statement to Sheriff Johnson should have been excluded and 2) he invoked counsel before speaking with Investigator Franks. MSC affirmed.
Analysis
A. Delashmit was not under arrest when speaking to Johnson
Delashmit was not under arrest at the time of his confession to Sheriff Johnson. An arrest within the meaning of the criminal law is the taking into custody of another person by an officer or a private person for the purpose of holding him to answer for an alleged or suspected crime.
In Dancer, we said that one who voluntarily accompanies an officer to a place where he may be interviewed is not under arrest. Delashmit voluntarily got into the patrol car to speak with Sheriff Johnson. The sheriff testified at the suppression hearing that Delashmit was detained based upon gathering information.
Sheriff Johnson likewise testified that due to the weather conditions, “I asked Delashmit to sit in the back seat of the patrol car on the driver’s side, and I got in the back seat of the patrol car next to him on the passenger side.” In Williamson, we said that police officers have authority to detain a person for investigatory purposes without actually arresting the person.
B. Delashmit made an ambiguous statement regarding counsel
In Grayson, we said when a suspect invokes his right to counsel, all interrogation must cease until the lawyer is present. However, such an invocation must be unambiguous. An ambiguous mention of possibly speaking with one’s attorney is insufficient to trigger the right to counsel.
The U.S. Supreme Court in Davis v. United States, 512 U.S. 452 (1994), held that the statement, “maybe I should talk to a lawyer,” was insufficient to trigger the right to counsel. A suspect must articulate his or her desire to have counsel present with sufficient clarity that a reasonable police officer under the circumstances would understand the statement to be a request for an attorney.
In Chamberlain, about a minute into the interview, the subject said, “I won’t tell you anything until I talk to a lawyer.” Police immediately asked questions to clarify whether Chamberlin had invoked her right to counsel. Subsequently, Chamberlin clearly said, “I’ll talk.”
In that case, we said that her questions concerning an attorney were ambiguous as a matter of law and investigators took all appropriate precautions to determine the nature and extent of the ambiguity, and that the defendant voluntarily and without coercion agreed to proceed and further answer questions.
In today’s case, Delashmit’s statement of “I prefer a lawyer” was only an ambiguous mention of possibly speaking with an attorney. Consistent with Chamberlin, we find that this statement was insufficient to invoke the right to counsel. Clearly, a reasonable police officer would not understand this statement alone to be an unequivocal assertion of the right to counsel.
Franks asked Delashmit numerous follow up questions to ensure that his rights were protected. Delashmit answered, “I’m willing to talk to you” and “without an attorney.” Franks thus was not required to cease her interrogation of Delashmit, and the trial court, therefore, did not err in allowing into evidence Delashmit’s statement to Franks.
Thoughts
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.