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24870 - State v. Kennedy

Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State of South

Carolina, Respondent,

v.

Robert Kennedy, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Kershaw County

Jackson V. Gregory, Judge

Opinion No. 24870

Heard September 23, 1998 - Filed December 29, 1998

AFFIRMED AS MODIFIED

Tara Dawn Shurling, of Columbia, for petitioner.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Salley W. Elliott; and Solicitor Warren

B. Giese, all of Columbia, for respondent.



MOORE, A.J.: We granted petitioner a writ of certiorari to

review the Court of Appeals' decision in this case. State v. Kennedy, 325

S.C. 295, 479 S.E.2d 83S (Ct. App. 1996). We affirm as modified.

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State v. Kennedy





DISCUSSION





Kennedy contends the Court of Appeals erred in affirming the

trial court's admission of his statement on the ground that the statement

was taken in violation of his right to counsel.1 We disagree.





A waiver of Miranda2 rights is determined from the totality of the

circumstances. State v. Moultrie, 273 S.C. 60, 254 S.E.2d 294 (1979). On

appeal, the conclusion of the trial judge on issues of fact as to the

voluntariness of a statement will not be disturbed unless so manifestly

erroneous as to show an abuse of discretion. State v. Rochester, 301 S.C.

196, 391 S.E.2d 244 (1990).







An express waiver is unnecessary to support a finding that the

defendant has waived the right to remain silent or the right to counsel

guaranteed by Miranda. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct.

1755, 60 L.Ed.2d 286 (1979). Statements elicited during interrogation are

admissible if the prosecution can establish that the suspect "knowingly and

intelligently waived his privilege against self-incrimination and his right to

retained or appointed counsel." Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.





Petitioner was transported by Officer David Thomley to

Kershaw County. Petitioner told Thomley he wanted to speak with the

solicitor. After the assistant solicitor said he would meet with petitioner

in the morning, petitioner was taken to a cell. The next morning,

Thomley escorted petitioner from the cell and petitioner testified he told

Thomley, "Okay, I did it." He testified Thomley was not questioning him

at the time.





Petitioner met with Thomley and the solicitor and told them he

wanted to make a formal statement. After being re-read his rights, he

testified he said, Well, I think I need a lawyer." The assistant solicitor

stopped and left the room. The trial court ruled that petitioner made an

inquiry about an attorney but he did not, in fact, request an attorney.


1The facts are fully set forth in the Court of Appeals' opinion.



2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

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State v. Kennedy





The Court of Appeals affirmed and held petitioner did not

invoke his right to counsel citing Davis v. United States, 512 U.S. 452,

114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), in which the United States

Supreme Court held the statement, "[m]aybe I should talk to a lawyer,"

was not a request for counsel. We hold the Court of Appeals erred in

finding petitioner had not invoked his right to counsel.





The United States Supreme Court has held the trial court is to

consider whether the accused's statement "can reasonably be construed to

be an expression of a desire for the assistance of an attorney." McNeil v.

Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158

(1991). If the desire for counsel is presented "sufficiently clearly that a

reasonable police officer in the circumstances would understand the

statement to be a request for an attorney," no ambiguity or equivocation

exists, and all questioning must cease until the person can consult counsel

or the accused voluntarily reinitiates conversation. Davis, 512 U.S. at 459

114 S.Ct. at 2355.





Here, it is obvious from the record the solicitor and everyone

involved viewed petitioner's request as an invocation of his right to

counsel. In State v. Jackson, 348 N.C. 52, 497 S.E.2d 409 (1998), the

North Carolina Supreme Court held that when a defendant stated, "I

think I need a lawyer present," he unambiguously invoked his right to

counsel. The court noted the request was not uncertain as in Davis and

stated its decision was reinforced by the notes of one of the officers

present during the interrogation which indicated that he, a reasonable

officer, interpreted the defendant's statement as a request for a lawyer.

Likewise, here, everyone involved interpreted petitioner's request as an

invocation of his right to counsel. Accordingly, we think petitioner

invoked his right to counsel and the Court of Appeals erred in concluding

otherwise.





However, we agree with the Court of Appeals' conclusion that

even if this were a proper invocation of the right to counsel, petitioner

waived this right when he initiated further discussions.







Once an accused requests counsel, police interrogation must

cease unless the accused himself "initiates further communication,

exchanges, or conversations with the police." Edwards v. Arizona, 451

U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981).

Interrogation is the express questioning, or its functional equivalent which

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State v. Kennedy





includes "words or actions on the part of the police ... that the police

should know are reasonably likely to elicit an incriminating response."

State v. Sims, 304 S.C. 409, 417, 405 S.E.2d 377, 381 (1991)(citing Rhode

Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d

297, 308 (1980)).





Thomley testified that after petitioner stated that he thought

he might want an attorney, Thomley told petitioner that if he wanted an

attorney the solicitor could not speak with him any further. Thomley

testified that petitioner then said, "No, call [the solicitor] back in here.

Let's go ahead and get this over with." Petitioner testified that he asked

Thomley how he could get an attorney and Thomley told him one would

have to be appointed. Petitioner testified he agreed to talk "out of

frustration" and "because [he] didn't know any other way out of jail."

Petitioner voluntarily waived his rights before the statement was taken.

Thomley was not interrogating petitioner. Based upon the totality of the

circumstances, we hold petitioner's statement was voluntary and petitioner

waived his right to counsel.





Petitioner's remaining issue is affirmed pursuant to Rule 220

(b)(1), and the following authorities: Butler, supra (express waiver is

unnecessary to support finding that defendant has waived right to remain

silent); Moultrie, supra (waiver of right to remain silent is determined

from totality of circumstances).



AFFIRMED AS MODIFIED.



FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.



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