State v. Nobles, ___ N.C. App. ___, 818 S.E.2d 129 (Jul. 3, 2018)

The trial court did not err by denying the defendant’s motion to suppress incriminating statements made to police during a custodial interview. The defendant asserted that the statements were made after he invoked his right to counsel. Before the custodial interview, the defendant was advised of his Miranda rights, initialed and signed the Miranda rights form, waived his Miranda rights, and spoke with law enforcement. The defendant asked at one point “Can I consult with a lawyer, I mean, or anything?” Finding that the trial court did not err by concluding that this question was not an unambiguous assertion of the right to counsel, the court noted:

Merely one-tenth of a second elapsed between the time that defendant asked, “[c]an I consult with a lawyer, I mean, or anything?” and then stated, “I mean I – I – I did it. I’m not laughing man, I want to cry because its f[*]cked up to be put on the spot like this.” The officers then immediately reminded defendant of his Miranda rights, that they had just read him those rights, that defendant “ha[d] the right to have [his attorney] here,” and that the officers “[could] never make that choice for [him] one way or another.” After police attempted to clarify whether defendant’s question was an affirmative assertion of his Miranda rights, defendant declined to unambiguously assert that right, continued communications, and never again asked about counsel for the rest of the interview.

The court concluded that although the defendant explicitly asked if he could consult with a lawyer, considering the totality of the circumstances his statement was ambiguous or equivocal, such that the officers were not required to cease questioning. He did not pause between the time he asked for counsel and gave his initial confession, the officers immediately reminded him of his Miranda rights to clarify if he was indeed asserting his right to counsel, and the defendant declined the offered opportunity to unambiguously assert that right but instead continued communicating with the officers. The court went on to hold that even if his question could be objectively construed as an unambiguous invocation of his Miranda rights it was immediately waived when he initiated further communication.