THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State of South
Robert Kennedy, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
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.
State v. Kennedy
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
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
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
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.