PRESENT: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 042204 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 9, 2005 

CURTIS DARNELL HILLIARD 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether the Court of Appeals 

erred in holding that a defendant's motion to suppress an 

incriminating statement should have been granted because he made 

the statement in response to police questioning conducted after 

he invoked his right to counsel. 

Curtis Darnell Hilliard was tried in the Circuit Court of 

the City of Richmond on charges of murder, in violation of Code 

§ 18.2-32; use of a firearm in the commission of murder, in 

violation of Code § 18.2-53.1; maliciously shooting into an 

occupied vehicle, in violation of Code § 18.2-154; and 

discharging a firearm within 1,000 feet of a school, in 

violation of Code § 18.2-280. Before trial, Hilliard filed a 

motion to suppress a statement he gave to the police, claiming a 

violation of his Fourth, Fifth, and Sixth Amendment rights, as 

well as certain rights under the Constitution and Code of 

Virginia. The circuit court denied the motion. A jury 

convicted Hilliard of all charges and the circuit court 

sentenced him to a term of 61 years’ imprisonment. 
2

On appeal, after a panel of the Court of Appeals affirmed 

the convictions in an unpublished opinion, the Court granted 

Hilliard’s petition for a rehearing en banc, stayed the mandate 

of its earlier decision, and reinstated the appeal. On 

rehearing en banc, the Court of Appeals affirmed in part, and 

reversed in part, the circuit court’s judgment and remanded the 

case to the circuit court for further proceedings. Hilliard v. 

Commonwealth, 43 Va. App. 659, 677-78, 601 S.E.2d 652, 661 

(2004). The Court held that Hilliard made a clear and 

unequivocal request for counsel during the course of a police 

interrogation, and that the circuit court erred in refusing to 

suppress his later admission that he had been present at the 

scene of the crime. Id. at 675, 601 S.E.2d at 660. The 

Commonwealth appeals, and Hilliard assigns cross-error. 

The facts relevant to the motion to suppress are 

undisputed. In July 1999, Anthony Robinson, Jr. was shot and 

killed. Hilliard was arrested for Robinson’s murder and, while 

in police custody, was questioned by Detectives Levin White and 

Martin Kochell of the City of Richmond Police Department. 

Detective Kochell advised Hilliard of his Miranda rights 

and asked him to sign a waiver form indicating that he 

understood his rights, including the right to have an attorney 

present during police questioning. Immediately after being 

informed of his rights, and before he signed the form, Hilliard 
3

made his first reference to an attorney, asking, “Can I have 

someone else present too, I mean just for my safety, like a 

lawyer like y’all just said?” Detective White replied, “That’s 

up to you. Like [Detective Kochell] said, all we’re doing today 

is just trying to get your side of the story.” 

Detective White informed Hilliard that they could not 

continue their discussion until he signed the waiver form. 

Hilliard executed the form. 

A few minutes later, in response to questioning by the 

detectives, Hilliard made his second alleged request for an 

attorney, stating: 

I need to say that . . . I’m not saying that I know 

anything. I’m not saying that I know the person. You 

know what I’m saying? The only thing, . . . like I 

said, I would like to have somebody else in here 

because I may say something I don’t even know what I 

am saying, and it might f[] me up, might jam me up in 

some incidents, and I don’t want that to happen, man. 

The detectives reassured Hilliard that they were not trying to 

“jam him up” and continued the interview. 

 About an hour later, Hilliard made his third alleged 

request for an attorney. In response to Detective White’s 

request that Hilliard tell his “side of the story,” the 

following exchange occurred: 

HILLIARD: Can I get a lawyer in here? 

DETECTIVE WHITE: Do you want to do that? 
4

HILLIARD: I already have a lawyer. I mean, I can talk 

to you, don’t get me wrong. But I just want to make 

sure I don’t, like I said before, just jam myself up. 

And I’ll tell you everything that I know. This is my 

word. 

DETECTIVE WHITE: Okay. That’s fine. 

DETECTIVE KOCHELL: That’s fine. 

HILLIARD: I’m not saying that I will say anything 

other or just because he’s in here. I just want to, 

you know, make sure I have . . . I’d feel more 

comfortable. 

DETECTIVE KOCHELL: That’s not a problem. We tried to 

provide you with a comfortable atmosphere here . . . 

HILLIARD: I will say, I will go as far as to say this. 

Probably what you all got in [the case file] ain’t 

nowhere near. 

. . . 

DETECTIVE WHITE: Anywhere near . . . of what we know 

of why it happened? 

HILLIARD: Yeah. 

DETECTIVE WHITE: Well, that’s why we want to hear from 

you, because we know there’s a bigger picture there. 

Okay? You know what the problem is, Curtis, is that 

you got caught up in it. 

HILLIARD: Yeah, I did. I was there. I’m going to 

just say that, I was there. But before I say anything 

else, I mean, I already talked to you before we go to 

court. 

After clarifying that Hilliard had admitted being present at the 

crime scene, but that he wanted to consult with an attorney, 

Detective White ended the interview. 
5

 In his motion to suppress in the circuit court, Hilliard 

argued that he had requested an attorney on three separate 

occasions, and that the detectives should have ceased 

questioning him following his first request. After viewing a 

videotape recording of the police interview, the circuit court 

denied Hilliard’s motion, concluding that Hilliard did not make 

an unequivocal request for counsel. The circuit court also held 

that Hilliard’s admission that he was present at the crime scene 

was a volunteered statement, rather than a response to a 

question posed by the detectives. 

 The Court of Appeals, en banc, reversed the circuit court’s 

judgment, holding that Hilliard’s third alleged request for 

counsel was unequivocal. Hilliard, 43 Va. App. at 673, 601 

S.E.2d at 659. The Court reviewed the videotape of Hilliard’s 

interrogation and concluded that although his first two 

statements “did not express a clear and unequivocal desire for 

counsel,” his third and final request did, and the police 

immediately should have ceased the interrogation. Id. at 671, 

601 S.E.2d at 658. The Court further held that Hilliard’s 

incriminating statement, that he was present at the crime scene, 

was the result of express questioning by the detectives after he 

had invoked his right to counsel. Id. at 675, 601 S.E.2d at 

660. 
6

 On appeal to this Court, the Commonwealth argues that the 

Court of Appeals applied an incorrect standard of review and 

improperly considered de novo certain historical facts and 

subjective aspects of the case. According to the Commonwealth, 

the Court of Appeals erroneously conducted a “factual” review of 

the videotape instead of relying on the circuit court’s 

conclusions drawn from the videotape, which were not plainly 

wrong. The Commonwealth also asserts that the Court of Appeals 

erred in considering whether the detectives subjectively 

understood Hilliard’s comments as invoking his right to counsel. 

 With regard to the merits of the circuit court’s holding, 

the Commonwealth argues that the Court of Appeals erred in 

concluding that Hilliard ultimately invoked his right to counsel 

during the police interrogation. The Commonwealth asserts that 

Hilliard’s statements were an expression of his “concern about 

the wisdom of continuing to speak,” but did not constitute a 

clear invocation of his right to an attorney. The Commonwealth 

also contends that the Court of Appeals erroneously considered 

Hilliard’s statement, “I already have a lawyer,” as a factor in 

determining whether he had invoked his right to counsel. 

 In response, Hilliard argues that the Court of Appeals 

properly reviewed the videotaped interview as part of its duty 

to conduct a de novo review of the circuit court’s legal 

conclusion that Hilliard’s statements were not sufficient to 
7

invoke his right to counsel. He further asserts that the Court 

of Appeals did not commit reversible error in referring to the 

detectives’ subjective beliefs, because the Court did not decide 

the case based on those beliefs but correctly applied an 

objective test. 

Addressing the merits of the circuit court’s holding, 

Hilliard argues that the Court of Appeals correctly concluded 

that his third and final request was a clear invocation of his 

right to counsel. However, asserting cross-error, Hilliard 

contends that the Court erred in refusing to hold that his two 

prior statements were similarly unequivocal. He asserts that in 

each instance, his comments objectively demonstrated that he was 

invoking his right to counsel, and that the detectives should 

have ceased questioning him after his first reference to the 

presence of an attorney. 

 In resolving these issues, we apply established 

constitutional principles. The right of a criminal suspect to 

have an attorney present during custodial interrogation was 

first articulated by the Supreme Court in Miranda v. Arizona, 

384 U.S. 436, 469-73 (1966). The Court held that before 

interrogating a suspect who is in police custody, law 

enforcement officers must inform the suspect of certain rights, 

including the right to the presence and assistance of counsel. 

Id. at 471. If the suspect waives his Miranda rights, the 
8

police are free to begin questioning him; however, if the 

suspect changes his mind during the interrogation and requests 

the assistance of counsel, the interrogation must cease until an 

attorney has been made available to the suspect or the suspect 

reinitiates the interrogation. Davis v. United States, 512 U.S. 

452, 458 (1994); Edwards v. Arizona, 451 U.S. 477, 484-85 

(1981). 

The question whether a suspect actually invoked his right 

to counsel involves an objective inquiry. Id. at 459; 

Commonwealth v. Redmond, 264 Va. 321, 328, 568 S.E.2d 695, 699 

(2002); see Connecticut v. Barrett, 479 U.S. 523, 529 (1987). 

To invoke this right, a suspect must state his desire to have 

counsel present with sufficient clarity that a reasonable police 

officer under the circumstances would understand the statement 

to be a request for counsel. Davis, 512 U.S. at 459; Redmond, 

264 Va. at 328-29, 568 S.E.2d at 699; Eaton v. Commonwealth, 240 

Va. 236, 253-54, 397 S.E.2d 385, 395-96 (1990). If, however, a 

suspect’s reference to an attorney is either ambiguous or 

equivocal, such that a reasonable officer under the 

circumstances would only have understood that the suspect might

be invoking his right to counsel, the officer is not required to 

stop questioning the suspect. Davis, 512 U.S. at 459, 461; 

Redmond, 264 Va. at 328-29, 568 S.E.2d at 699; Eaton, 240 Va. at 

253-54, 397 S.E.2d at 395-96. 
9

The issue whether a suspect invoked his right to counsel 

presents a mixed question of law and fact, which requires the 

application of these constitutional standards to the facts of a 

given case. Redmond, 264 Va. at 326, 568 S.E.2d at 697. When 

an appellate court conducts its independent review of a circuit 

court’s determination of this issue, the appellate court may 

review the circuit court’s findings of historical fact only for 

clear error and must give deference to the inferences that may 

be drawn from those factual findings. Id. at 327, 568 S.E.2d at 

698; see Ornelas v. United States, 517 U.S. 690, 699 (1996). 

Here, the circuit court did not make any factual findings 

regarding what Hilliard actually said because the parties did 

not dispute the content of his statements to the police. 

Therefore, appellate consideration of the circuit court’s denial 

of Hilliard’s motion to suppress is restricted to a de novo

review of the legal issue whether Hilliard’s words, taken in 

context, were sufficient to invoke his right to counsel. See

Redmond, 264 Va. at 327, 568 S.E.2d at 698; United States v. 

Younger, 398 F.3d 1179, 1185 (9th Cir. 2005); United States v. 

Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993). 

Initially, we agree with the Commonwealth’s contention that 

the Court of Appeals erred in referring to the detectives’ 

subjective understanding whether Hilliard invoked his right to 

counsel. As we emphasized in Redmond, the determination whether 
10

an accused actually invoked his right to counsel is a purely 

objective inquiry. Id. at 328, 264 Va. at 699; see Davis, 512 

U.S. at 459. Thus, the detectives’ subjective understanding is 

irrelevant to this inquiry and provides no support for the Court 

of Appeals’ holding. However, we conclude that the Court of 

Appeals’ error in this regard was harmless because the language 

at issue was dictum stated by the Court after it had completed 

the objective test mandated by Davis. 

We next consider the Commonwealth’s argument that the Court 

of Appeals erroneously conducted a de novo review of the 

historical facts of the case. Under the standard of review 

stated above, the Court of Appeals was required to uphold the 

circuit court’s determination unless the historical facts, as a 

matter of law, did not support the circuit court’s conclusion 

that Hilliard failed to invoke his right to counsel. 

The Court of Appeals, in determining this issue of law, 

necessarily had to review the words Hilliard spoke to determine 

whether they were legally sufficient to invoke his right to 

counsel. That review of the words spoken by Hilliard also 

required consideration of the context in which his statements 

were made. 

Likewise, appellate review of the legal sufficiency of 

words spoken by a defendant may include review of the tone of a 

defendant’s voice, any voice inflections, and the defendant’s 
11

demeanor, if those factors are alleged to have affected the 

meaning of the words spoken. However, the appellate court’s 

review of such factors is limited to the issue whether the 

defendant’s words, as spoken, were legally sufficient to invoke 

his right to counsel. The appellate court is not permitted to 

use such factors to conduct its own fact finding and, to the 

extent that the appellate court does so, it commits error. 

Here, the Court of Appeals cited, among other things, the 

tone of Hilliard’s voice, his voice inflections, and his 

demeanor in concluding that the totality of the circumstances 

“support[s] the reasonable conclusion that Hilliard clearly 

requested the presence of counsel . . . .” Hilliard, 43 Va. 

App. at 673, 601 S.E.2d at 659. This conclusion exceeded the 

scope of the Court’s duty to confine its review to the issue 

whether Hilliard’s words, as spoken, were legally sufficient to 

invoke his right to counsel in light of the circuit court’s 

finding that they were not. However, we conclude that this 

error was harmless because the Court ultimately and properly 

considered the legal sufficiency of Hilliard’s words, as 

demonstrated by the Court’s holding that “Hilliard’s [third set 

of] statements could only be understood by reasonable officers, 

under the circumstances at issue in this case, as an unambiguous 

assertion of his right to counsel.” Id. at 672, 601 S.E.2d at 
12

658. Therefore, we consider the Court of Appeals’ holding by 

examining Hilliard’s three alleged requests for an attorney. 

We conclude that Hilliard’s first and second alleged 

requests do not qualify as unequivocal assertions of his right 

to counsel. In the first instance, as stated above, Hilliard 

asked, “Can I have someone else present too, I mean just for my 

safety, like a lawyer like y’all just said?” Detective White 

replied, “That’s up to you,” and told Hilliard that they could 

not continue their interview unless he signed the waiver form. 

Hilliard signed the form and continued to speak to the 

detectives without a lawyer being present. 

This first exchange, which occurred immediately after 

Hilliard was advised of his Miranda rights, was merely an 

inquiry requesting a clarification or affirmation of the rights 

that had just been explained to him. See, e.g., Eaton, 240 Va. 

at 253-54, 397 S.E.2d at 395-96; Poyner v. Commonwealth, 229 Va. 

401, 410, 329 S.E.2d 815, 823 (1985). Hilliard continued to 

speak with the detectives instead of requesting the presence of 

counsel after being told that the decision was “up to [him].” 

Thus, we hold that Hilliard’s first reference to the presence of 

an attorney was not an unambiguous request for counsel, and the 

detectives were not required to stop questioning him under the 

Edwards rule. See Davis, 512 U.S. at 461-62; Edwards, 451 U.S. 

at 484-85; Redmond, 264 Va. at 330, 568 S.E.2d at 700. 
13

Hilliard made his second alleged request a few minutes 

later in the interview. He stated that he “would like to have 

somebody else in here because I may say something I don’t even 

know what I am saying, and it might . . . jam me up . . . .” 

We examine this second statement with reference to our 

holding in Midkiff v. Commonwealth, 250 Va. 262, 462 S.E.2d 112 

(1995). There, after having been advised of his Miranda rights, 

the defendant stated, “I’ll be honest with you, I’m scared to 

say anything without talking to a lawyer.” Id. at 265, 462 

S.E.2d at 114. We concluded that although the defendant’s 

statement expressed reservation about the wisdom of continuing 

the interrogation without the presence of counsel, the statement 

did not “clearly and unambiguously communicate a desire to 

invoke his right to counsel.” Id. at 267, 462 S.E.2d at 115. 

We conclude that Hilliard’s statement was even more 

ambiguous than the statement in Midkiff because the defendant in 

that case mentioned “talking to a lawyer,” while Hilliard merely 

stated that he would “like to have somebody else in here” to 

avoid making statements that might implicate him. Thus, guided 

by our holding in Midkiff, we conclude that Hilliard’s second 

alleged request for an attorney was equivocal because it failed 

to communicate more than an uncertainty about the wisdom of 

continuing the interrogation without consulting another person. 
14

See id.; Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d 

124, 132 (1994).

Hilliard’s third alleged request for an attorney occurred 

about one hour later in the interrogation. As recounted above, 

Hilliard asked, “Can I get a lawyer in here?” Detective White 

responded, “Do you want to do that?” Hilliard then stated, “I 

already have a lawyer. I mean, I can talk to you, don’t get me 

wrong. But I just want to make sure I don’t, like I said 

before, just jam myself up.” 

We consider this exchange in the context of the 

circumstances and the prior statements made by Hilliard. When 

viewed as a whole, the import of Hilliard’s statements is clear. 

We hold that as a matter of law, Hilliard’s third alleged 

request for an attorney, in context, was an unequivocal request 

for counsel stated with sufficient clarity that a reasonable 

police officer under the circumstances would have understood the 

statements to be a request for counsel.∗ Therefore, at that 

point, the detectives were required to cease interrogating 

Hilliard. See Davis, 512 U.S. at 458; Edwards, 451 U.S. at 484-

85; Redmond, 264 Va. at 328, 568 S.E.2d at 698. Accordingly, we 
15

hold that the Court of Appeals correctly concluded that the 

circuit court erred in denying Hilliard’s motion to suppress, 

because Hilliard’s confession was obtained in violation of his 

Fifth Amendment rights. 

We also observe that the Commonwealth does not assign error 

to the Court of Appeals’ determination that the circuit court 

erred in concluding that Hilliard’s admission, “I was there,” 

was a volunteered statement and, thus, was admissible 

irrespective whether he had invoked his right to counsel. The 

Court of Appeals held that Hilliard’s statement confessing his 

presence at the scene of the crime was obtained as a result of 

express questioning by the police detectives. Hilliard, 43 Va. 

App. at 675, 601 S.E.2d at 660. In light of the Commonwealth’s 

decision not to challenge this part of the Court of Appeals’ 

holding, we do not further address the issue. 

Finally, we do not consider Hilliard’s assignment of crosserror that the police violated his Sixth Amendment right to 

counsel, because Hilliard failed to preserve this issue in the 

circuit court. Although Hilliard made an unsubstantiated 

reference to the Sixth Amendment in his written motion to 

 ∗

 Although Hilliard stated that he already had a lawyer, he 

did not have counsel appointed or retained on the charges for 

which he was being interviewed by the detectives. Thus, we do 

not consider that statement as a request for the presence of a 

particular attorney. However, as stated above, we consider that 
16

suppress, he did not refer to that issue in his oral argument on 

the motion but solely addressed his Fifth Amendment claims. 

Thus, Hilliard did not ask the circuit court to rule on his 

Sixth Amendment claim, and we will not consider it for the first 

time on appeal. See Rule 5:25. 

For these reasons, we will affirm the Court of Appeals’ 

judgment. 

Affirmed.

JUSTICE AGEE, concurring in part and dissenting in part. 

 I join the majority in affirming that portion of the Court 

of Appeals judgment that (1) Hilliard failed to properly 

preserve his Sixth Amendment claim for appeal and (2) neither of 

Hilliard's first two purported requests for an attorney 

constituted a clear invocation of his right to counsel. 

However, I write separately because I disagree that Hilliard's 

third alleged request for an attorney "express[ed] an 

unequivocal request for counsel." 

 The right to counsel established in Miranda v. Arizona, 384 

U.S. 436, 469-73 (1966), is "a . . . procedural safeguard 

[meant] . . . to insure that the right against selfincrimination was protected." Davis v. United States, 512 U.S. 

452, 457 (1994) (citing Michigan v. Tucker, 417 U.S. 433, 443-

 

statement together with Hilliard’s other statements in holding 

that he unequivocally invoked his right to counsel. 
17

444 (1974)). In Edwards v. Arizona, 451 U.S. 477 (1981), the 

United States Supreme Court established an additional protection 

for suspects, holding that if, in the course of interrogation, a 

suspect affirmatively invokes his right to counsel, "questioning 

must cease." Davis, 512 U.S. at 461. However, "after a knowing 

and voluntary waiver of the Miranda rights, law enforcement 

officers may continue questioning until and unless the suspect 

clearly requests an attorney." Id. 

 In Davis, the United States Supreme Court addressed on the 

merits, the issue of "ambiguous or equivocal references to 

counsel during custodial interrogation." Id. at 456. The Court 

noted that a suspect has the burden to "unambiguously request 

counsel" because "the primary protection afforded suspects 

subject to custodial interrogation is the Miranda warnings 

themselves." Id. at 459-60. Thus, a law enforcement officer 

conducting a custodial interrogation meets his obligation under 

Miranda when he advises a suspect of his right to counsel. 

[I]f a suspect makes a reference to an attorney that 

is ambiguous or equivocal in that a reasonable officer 

in light of the circumstances would have understood 

only that the suspect might be invoking the right to 

counsel, our precedents do not require the cessation 

of questioning. 

Id. at 459. Because the officer's responsibility to discontinue 

interrogation is triggered by the suspect's assertion of his 
18

Miranda right, that assertion must be "unambiguous." Id. at 

459. In short, 

the police must respect a suspect's wishes regarding 

his right to have an attorney present during custodial 

interrogation, [b]ut when the officers conducting the 

questioning reasonably do not know whether or not the 

suspect wants a lawyer, a rule requiring the immediate 

cessation of questioning would transform the Miranda

safeguards into wholly irrational obstacles to 

legitimate police investigative activity. 

Id. at 460 (citation and internal quotation marks omitted). The 

Davis Court noted that, "if we were to require questioning to 

cease if a suspect makes a statement that might be a request for 

an attorney, . . . [p]olice officers would be forced to make 

difficult judgment calls about whether the suspect in fact wants 

a lawyer[,] . . . with the threat of suppression if they guess 

wrong." Id. at 461. 

We applied Davis in Commonwealth v. Redmond, 264 Va. 321, 

324, 328-30, 568 S.E.2d 695, 696, 698-99 (2002), where the 

defendant moved to suppress a confession he made during a 

custodial interrogation claiming that he had invoked his right 

to counsel. After the defendant was advised of his Miranda 

rights, a police detective began interrogation. At some point, 

the defendant asked, "Can I speak to my lawyer? I can't even 

talk to lawyer before I make any kinds of comments or anything?" 

Id. at 325, 568 S.E.2d at 697. The detective responded, 

You can do anything you like . . . . You have the 

freedom to do anything you want. . . . to go to sleep 
19

right now if you want to do that. . . . You have the 

freedom to sit here and talk to me. . . . The point is 

. . . this is your opportunity [to give your side of 

the story]; this is your time. There ain't tomorrow, 

there ain't later. Okay? There's not later. There 

is no later. And I'm trying, I'm trying to give you 

. . . the opportunity to help yourself out a little 

bit. 

Id. at 325-26, 568 S.E.2d at 697. The defendant never 

reasserted his request. Citing the holding of Davis, this Court 

determined that the defendant's statements in Redmond "were not 

a clear and unambiguous assertion of his right to counsel." Id. 

at 330, 568 S.E.2d at 700. 

 We noted in Redmond the Supreme Court's refusal in Davis

"to adopt a rule requiring officers to ask clarifying questions" 

to determine if a suspect's statement is a request for counsel. 

Id. The Davis Court explained, however, that "[c]larifying 

questions help protect the rights of the suspect by ensuring 

that he gets an attorney if he wants one." Davis, 512 U.S. at 

461. 

In this case, the interrogating officer did follow up 

Hilliard's question, "Can I get a lawyer in here?" with a 

clarifying question: "Do you want to do that?" Rather than 

responding affirmatively, Hilliard continued, 

I already have a lawyer. I mean, I can talk to you, 

don't get me wrong. But I just want to make sure I 

don't, like I said before, just jam myself up. And 

I'll tell you everything that I know. This is my 

word. 
20

The officer gave Hilliard the opportunity to clearly request an 

attorney, but Hilliard did not. 

In my view, the majority's determination that Hilliard 

unequivocally requested counsel is inconsistent with this 

Court's holding in Redmond and at odds with the guidance from 

the United States Supreme Court in Davis. Taken in full 

context, Hilliard's question "Can I get a lawyer in here?" is no 

more an "unambiguous or unequivocal request for counsel" than 

Redmond's "Can I speak with my lawyer?" If anything, the 

defendant's comments in Redmond were a stronger indication of a 

possible request for counsel than Hilliard's general inquiry in 

this case. 

Redmond, arguably, was asking for "my lawyer" while 

Hilliard was generically asking whether he had the right to 

speak to "a lawyer," a right previously and immediately 

thereafter explained to him. Further, the detective 

interrogating Redmond steered him away from his initial question 

and emphasized the importance of continuing with the 

interrogation, while the officer questioning Hilliard gave him 

an immediate opportunity to make his request clear. The 

suppression of Hilliard's admission does not comport with our 

decision to affirm the admissibility of Redmond's confession. 

Judge Clements' dissenting opinion in the Court of Appeals 

succinctly states the deficiency in concluding that Hilliard's 
21

third alleged request for an attorney was unequivocal under 

Davis or Redmond. 

[The third alleged request] is no less equivocal than 

his first two purported requests for counsel or the 

defendant's question in Redmond. . . . At best, a[n] 

. . . officer . . . would have understood only that 

Hilliard might be invoking the right to counsel. 

Likewise, Hilliard's statements and actions in 

response to the detective's follow-up clarifying 

question. . . were equivocal. Instead of directly 

answering the detective's question in the affirmative, 

Hilliard again merely expressed his reservation about 

the wisdom of continuing the interrogation without 

consulting a lawyer and continued talking to the 

detectives in a manner that did not clearly and 

unambiguously communicate a desire to invoke his right 

to counsel. . . . [B]ecause the likelihood that a 

suspect would wish counsel to be present is not the 

test for applicability of the rule requiring cessation 

of the interrogation if the suspect requests counsel, 

Hilliard's reference to a lawyer, like those of the 

defendants in Davis and Redmond, fell short of 

requesting counsel in a clear and unambiguous manner. 

Hilliard v. Commonwealth, 43 Va. App. 659, 686-87, 601 S.E.2d 

652, 665-66 (2004) (Clements, J., concurring and dissenting). 

 The Davis court clearly stated the basis for the rule that 

a request for counsel be unambiguous and unequivocal because it 

provides 

a bright line that can be applied by officers in the 

real world of investigation and interrogation without 

unduly hampering the gathering of information. But if 

we were to require questioning to cease if a suspect 

makes a statement that might be a request for an 

attorney, this clarity and ease of application would 

be lost. 

Davis, 512 U.S. at 461. 
22

By permitting Hilliard's equivocal request to stand as the 

basis for sustaining his motion to suppress, I believe the 

majority's opinion will obscure a "bright line" for future cases 

and foster the ambiguity Davis sought to constrain. 

Accordingly, I respectfully dissent and would reverse that part 

of the judgment of the Court of Appeals holding that the trial 

court erred in denying Hilliard's motion to suppress.