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03/03/95 GREGORY ALLAN BROWN v. STATE

March 3, 1995

GREGORY ALLAN BROWN
v.
STATE



Appeal from Jefferson Circuit Court. (CC-91-2136). Michael McCormick, TRIAL JUDGE.

Rehearing Denied May 5, 1995. Certiorari Denied September 15, 1995. Released For Publication February 17, 1996.

Cobb, Judge. All the Judges concur except Taylor, P.j., who Dissents with opinion.

The opinion of the court was delivered by: Cobb

ON REMAND FROM THE UNITED STATES SUPREME COURT

COBB, JUDGE

This case was originally assigned to another Judge on the Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

On August 13, 1993, this court reversed this appellant's conviction and held that "regardless whether the appellant's request to speak to his friend, who is an attorney, is considered a clear request or is considered an equivocal request, the investigators' failure to respond to or to clarify that request nonetheless violated the appellant's Fifth Amendment rights." See Brown v. State, 630 So. 2d 481, ___ (Ala. Crim. App. 1993). The Alabama Supreme Court denied certiorari review on December 17, 1993. On October 3, 1994, the United States Supreme Court remanded this cause to this court for further consideration in light of Davis v. United States, 512 U.S. ___, 129 L. Ed. 2d 362, 114 S. Ct. 2350, ___ So. 2d ___ (1994). The facts of this case were recited in our original opinion in Brown.

I

In Davis, 512 U.S. at ___, 114 S. Ct. at 2355, ____L.Ed.____ at____ the United States Supreme Court stated:

"The applicability of the '"rigid" prophylactic rule' of Edwards [v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)] requires courts to 'determine whether the accused actually invoked his right to counsel.' Smith v. Illinois, 469 U.S.[91], at 95, 105 S. Ct. [490], at 492 [83 L. Ed. 2d 488 (1980) (emphasis added [in Davis]), quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 2569, 61 L. Ed. 2d 197 (1979). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. See Connecticut v. Barrett, 479 U.S. [523] at 529, 107 S. Ct. [828] at 832 [93 L.Ed. 920 (1987)] Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' McNeil v. Wisconsin, 501 U.S. [171] at 178, 111 S. Ct. [2204], at 2209 [115 L. Ed. 2d 158 (1991)]. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. See ibid. ('the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards ;); Edwards v. Arizona, supra, 451 U.S., at 485, 101 S. Ct., at 1885 (impermissible for authorities 'to reinterrogate an accused in custody if he has clearly asserted his right to counsel') (emphasis added in Davis).

"Rather, the suspect must unambiguously request counsel. As we have observed, 'a statement either is such an assertion of the right to counsel or it is not.' Smith v. Illinois, 469 U.S., at 97-98, 105 S. Ct., at 494 (brackets and internal quotation marks omitted). Although a suspect need not 'speak with the discrimination of an Oxford don,: post, at 2364 (SOUTER, J., Concurring in judgment), he 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. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U.S. 412, 433, n. 4, 106 S. Ct. 1135, 1147, n. 4, 89 L. Ed. 2d 410 (1986) ('the interrogation must cease until an attorney is present only if the individual states that he wants an attorney') (citations and internal quotation marks omitted)."

In this case, the appellant asked the officers "Is it going to piss y'all off if I ask for my -- to talk to a friend that is an attorney? I mean, I'm going to do whatever I have got to do. Don't get me wrong." This is certainly not an unambiguous request for counsel as required by Davis. Therefore, the appellant's assertion that his statements to the police should have been suppressed because, he says, they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), is without merit.

II

The appellant contends the trial court erred by admitting his statement into evidence because, he says, his statement was obtained after "promises of beneficial treatment" were made to him by the police. The following portion ...


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