Invoking Right to An Attorney - Motion to Suppress

An appellant contended that the trial court erred in denying his motion to suppress the statement he gave police. He argued that the statement in question was taken after he had requested an attorney by writing "no" on the waiver of counsel portion of the "Explanation of Rights" form he was asked to sign by police before questioning began. Therefore, he contended, that statement should have been suppressed, as it was taken in violation of his right to counsel. The test to determine whether an invocation of a right to counsel has occurred following Miranda warnings "'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.'" Id. (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991)). The statement must be sufficiently clear "that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. But "doubts must be resolved in favor of protecting the constitutional claim," and courts are to "give a broad, rather than a narrow, interpretation to a defendant's request for counsel . . . ." Michigan v. Jackson, 475 U.S. 625, 633, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986). Once such an assertion is made by a suspect, law enforcement officials must cease all questioning until an attorney has been made available or the suspect himself reinitiates conversation. See Davis, 512 U.S. at 458 (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981)). In reviewing the denial of a motion to suppress, we may consider only the facts produced "'at the suppression hearing . . . which are most favorable to the State as the prevailing party on the motion.'" Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990) (quoting Simpler v. State, 318 Md. 311, 312, 568 A.2d 22 (1990)). Moreover, if there is conflicting evidence, we must adopt the findings of fact of the trial judge, unless the findings are clearly erroneous. See Riddick, 319 Md. at 183. Nonetheless, we are required to "make our own independent constitutional appraisal" as to whether an action was proper "by reviewing the law and applying it to the facts of the case." Matthews v. State, 106 Md. App. 725, 732, 666 A.2d 912 (1995). With this in mind, we shall now consider the circumstances surrounding appellant's statement. Neither party disputes that appellant, having surrendered pursuant to a warrant for his arrest, was the subject of a custodial interrogation at the time he gave the statement in question, and that, therefore, Miranda warnings were required. See Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Nor does either party question whether the warnings were in fact given as required by law. Indeed, the only issue before us is whether appellant, by writing "no" after his signature, on a form waiving his right to counsel, asserted his right to counsel. See Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). The State contends that appellant's written "no" was ambiguous because the waiver provision was "multifaceted." We disagree. As there was no room in the provision for appellant to respond to each of its assertions, appellant had no choice but to place his written "no" where he did. That "no" can only reasonably be read as a negative response to each assertion of that provision waiving his right to counsel. Moreover, if there is any ambiguity in appellant's unequivocal and emphatic response, as contended by the State (and we do not believe that there is) because of the "multifaceted" nature of the sentences that compose the waiver of counsel provision, the ambiguity should arguably be interpreted against the author of that provision -- the State. No discernable public interest is served by interpreting a purportedly ambiguous waiver of rights provision in favor of the party who, either intentionally or unintentionally, inserted the ambiguity in the provision in the first place. Finally, the State's suggestion that appellant's post-statement explanations for writing "no" next to his signature rendered ambiguous this handwritten declaration is also without merit. In rejecting a similar claim in Smith v. Illinois, 469 U.S. 91, 92, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), the United States Supreme Court held that "an accused's post-request responses may not be used to cast doubt on the clarity of his initial request for counsel." See also Brown v. State, 79 Md. App. 163, 168, 556 A.2d 285 (1989) ("Once a defendant requests a lawyer, subsequent advisement of constitutional rights followed by acquiescence in police-initiated questioning cannot establish a valid waiver of the Sixth Amendment right to assistance of counsel."). In Smith, the defendant, in response to a question by police as to whether he understood his right to have counsel present, stated, "Uh, yeah. I'd like to do that." 469 U.S. at 93. Notwithstanding this explicit request for counsel, conditioned only, if at all, by "uh" and "yeah," the state court below held that, when the statement was considered with others made later, the statement was not a clear and unequivocal invocation of the right to counsel. Id. at 94. Rejecting "this line of analysis" as "unprecedented and untenable," the Supreme Court stated: Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused's subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Id. at 98. As the post-request statements in question were made by appellant not only after he had invoked his right to counsel but also after he had in fact given a statement (that was audio taped twenty-five minutes later), they could not constitute a valid waiver of the right to counsel, which, to be effective, must precede the statement given. See id. Parenthetically, we note that at least one of appellant's post-request statements -- his assertion that the police were trying to trick him -- was not only unambiguous but quite understandable. Indeed, what other conclusion could he have drawn from what must have appeared to him as a deliberate effort by the police to slip in a waiver of counsel provision in an explanation of rights form and from Detective's instruction that he sign the waiver of counsel statement if he simply understood it. In sum, we hold that, because appellant invoked his right to counsel, Detective should have immediately ceased his questioning of appellant. His failure to do so renders all of appellant's subsequent statements to him, taped or otherwise, inadmissible as violative of his right to counsel. the trial court therefore erred in denying appellant's motion to suppress those statements.