Present: Carrico, C.J., Compton, Stephenson, Whiting,1

 Lacy, 

Hassell, and Keenan, JJ. 

THOMAS JEFFERSON MIDKIFF 

v. Record No. 941716 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 15, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 I. 

 Thomas Jefferson Midkiff was convicted by a jury in the 

Circuit Court of Carroll County of two counts of first degree 

murder and one count of arson. He received a sentence of life 

imprisonment for each murder conviction and 10 years' 

imprisonment and a fine of $15,000 for the arson conviction. 

 On appeal to the Court of Appeals, Midkiff challenged the 

admissibility of a confession he made during a police 

interrogation. Midkiff contended that during the course of the 

questioning, he effectively invoked his constitutional right to 

counsel and his right to remain silent and that the exercise of 

these rights was not honored by his interrogators. 

Additionally, Midkiff maintained that, considering the totality 

of the circumstances, his confession was involuntary. 

 The Court of Appeals denied Midkiff's petition for appeal, 

concluding that under the totality of the circumstances Midkiff 

voluntarily answered questions from the officers and that his 

statement, "I'm scared to say anything without talking to a 

lawyer," was not a clear and unambiguous invocation of either 

 

 1Justice Whiting participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

August 12, 1995. 
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his right to counsel or his right to remain silent. We granted 

Midkiff's petition for appeal on these same issues and will 

affirm the judgment of the Court of Appeals. 

 II. 

 At 8:00 p.m. on December 3, 1991, the Hillsville Volunteer 

Fire Department was dispatched to the scene of a fire at a 

Carroll County residence. Inside, fire fighters found the 

bodies of Sheila Marie Ring and her two-year-old daughter, 

Jasmine Sutphin. Although the bodies were badly burned, 

subsequent autopsies revealed that both victims died from 

wounds inflicted prior to the fire. The cause of Ring's death 

was determined to be multiple stab wounds. Sutphin died from a 

single cut to her throat. 

 During the course of the investigation, Ring's landlord, 

Rhudy Lineberry, told investigators that he had seen a man on 

the porch of Ring's residence around 5:30 p.m. on the evening 

of the fire. Lineberry later identified this man as Midkiff. 

 After being informed by his brother-in-law that he was a 

suspect, Midkiff voluntarily went to the sheriff's office for 

questioning on December 5, 1991, at 10:40 p.m. Midkiff was 

read his Miranda rights before being questioned. After 

approximately 20 minutes of questioning, Midkiff agreed to go 

to the state police headquarters in Wytheville for a polygraph 

examination and further interrogation. Although he initially 

denied any involvement with the murders and the arson, during 
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the course of questioning at Wytheville Midkiff orally 

confessed to both murders and signed two written confessions. 

He was given his Miranda rights twice more at Wytheville, once 

prior to taking three polygraph examinations and again before 

signing the written confessions. 

 III. 

 Midkiff relies on two exchanges during the course of his 

interrogation in Wytheville to sustain his contention that he 

invoked his constitutional rights. During post-polygraph 

questioning by State Police Special Agent T.S. Svard, the 

following conversation transpired: 

 MR. SVARD: This is the only job I've had in twentythree (23) years where I can actually help people. 

You can't help them in uniform. You can't help them 

out there. Here, I can help them, help them. So I 

want you to tell me what happened. 

 MR. MIDKIFF: I'll be honest with you, I'm scared to 

say anything without talking to a lawyer. 

 MR. SVARD: Well, that's entirely up to you, but, 

 but . . . 

 MR. MIDKIFF: Because I, I got hoodooed big time back 

in, when I was in, now, don't get me wrong, I ain't 

. . . 

 

 (recorder is turned off) 

 After the recorder was turned back on, Sheriff Carrico 

began questioning Midkiff. 

 SHERIFF CARRICO: Let's talk about it. Be up front 

with me. I'll be up front with you. I'll get you 

every bit of help I can. Was you over there? Talk 

to me, T.J. 

 MR. MIDKIFF: I don't got to answer that, Dick, you 

know. 
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 SHERIFF CARRICO: No. You've got to tell me. I 

can't just up and say T.J., I got to, I got to listen 

to you. You've got to tell me and the only way that 

I can get you help is for you to tell me. 

 A. 

 Midkiff relies on the statement, "I'll be honest with you, 

I'm scared to say anything without talking to a lawyer," to 

support the contention that his confession should be suppressed 

because he invoked his right to counsel. Since the United 

States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 

436, 474 (1966), courts have recognized that the assertion of 

the right to counsel is a significant event and that thereafter 

all questioning must be suspended until an attorney is present. 

 In the years since Miranda, it has become well established 

that once an accused expresses a desire to exercise his right 

to counsel, authorities may not further interrogate the accused 

until counsel is present unless the accused initiates further 

conversation or exchanges with the authorities. Edwards v. 

Arizona, 451 U.S. 477, 484-85 (1981). Miranda and its progeny 

do not permit the police to continue to interrogate an accused 

in custody if he has "clearly asserted his right to counsel." 

Edwards, 451 U.S. at 485. 

 This Court has consistently held that a clear and 

unambiguous assertion of the right to counsel is necessary to 

invoke the Edwards rule. See Mueller v. Commonwealth, 244 Va. 

386, 422 S.E.2d 380 (1992), cert. denied, 507 U.S. ___, 113 
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S.Ct. 1880 (1993); King v. Commonwealth, 243 Va. 353, 416 

S.E.2d 669, cert. denied, 506 U.S. ___, 113 S.Ct. 417 (1992); 

Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990), 

cert. denied, 502 U.S. 824 (1991). Recently, the United States 

Supreme Court, while recognizing that good practice suggests 

that the police should attempt to clarify ambiguous statements, 

nevertheless held that, after a voluntary and knowing waiver of 

Miranda rights, officers may continue questioning until the 

suspect clearly and unequivocally requests an attorney. Davis 

v. United States, ___ U.S. ___, ___, 114 S.Ct. 2350, 2356-57 

(1994). Therefore, the issue is whether the statement, "I'll 

be honest with you, I'm scared to say anything without talking 

to a lawyer," was a clear and unambiguous assertion by Midkiff 

of his right to counsel. 

 In prior decisions, we have been faced with the task of 

evaluating statements similar to the one that Midkiff asserts 

is a clear invocation of his right to counsel. We have held 

that defendants' questions, "Do you think I need an attorney 

here?," Mueller, 244 Va. at 396, 422 S.E.2d at 387, "You did 

say I could have an attorney if I wanted one?," Eaton, 240 Va. 

at 250, 397 S.E.2d at 393, and "Didn't you say I have the right 

to an attorney?," Poyner v. Commonwealth, 229 Va. 401, 410, 329 

S.E.2d 815, 823, cert. denied, 474 U.S. 865 (1985), fell short 

of being clear assertions of the right to counsel. Further, 

the United States Supreme Court recently held that the 
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statement, "Maybe I should talk to a lawyer," was not an 

invocation of the right to counsel and, therefore, subsequent 

statements by the accused did not need to be suppressed. 

Davis, ___ U.S. at ___, 114 S.Ct. at 2357. 

 Midkiff's statement falls within the category of 

statements which do not clearly and unambiguously request an 

attorney. The statement, "I'm scared to say anything without 

talking to a lawyer," expresses his reservation about the 

wisdom of continuing the interrogation without consulting a 

lawyer; however, it does not clearly and unambiguously 

communicate a desire to invoke his right to counsel. Midkiff's 

statement, similar to those of the defendants in Mueller, 

Eaton, and Poyner, fell short of requesting counsel in a clear 

and unambiguous manner. 

 B. 

 Similar considerations are raised by Midkiff's argument 

concerning his right to remain silent. Relying on the 

statements, "I'll be honest with you, I'm scared to say 

anything without talking to a lawyer" and "I don't got to 

answer that, Dick, you know," Midkiff maintains that he invoked 

his right to remain silent. Miranda recognized that if a 

suspect "indicates in any manner, at any time prior to or 

during questioning, that he wishes to remain silent, the 

interrogation must cease." Miranda, 384 U.S. at 473-74. 

However, this Court has stated that "Miranda should not be read 
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so strictly as to require the police to accept as conclusive 

any statement, no matter how ambiguous, as a sign that the 

suspect desires to cut off questioning." Lamb v. Commonwealth, 

217 Va. 307, 312, 227 S.E.2d 737, 741 (1976). 

 Considering Midkiff's statements in context, it is clear 

that both are statements expressing reservations about 

discussing the case but do not invoke his right to remain 

silent. The transcript of the interrogation session excerpted 

above shows that Midkiff was interrupted by Agent Svard. When 

Midkiff's statement is examined without Svard's interjection, 

"I'll be honest with you, I'm scared to say anything without 

talking to a lawyer . . . [b]ecause I, I got hoodooed big time 

back in, when I was in, now, don't get me wrong . . .," it is 

clear that Midkiff merely expressed his reservations about 

answering questions based on his past experience with the 

criminal justice system. As we noted recently, "[i]t is true 

that [the defendant's] statements can be perceived as a 

reservation about the wisdom of continuing the interrogation. 

However, in spite of whatever reservations he may have had, he 

elected to proceed with the interrogation and failed to 

exercise his right to terminate questioning." Burket v. 

Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124, 132 (1994), 

cert. denied, ___ U.S. ___, 115 S.Ct. 1433 (1995). 

 Similarly, the second statement, "I don't got to answer 

that, Dick, you know," is simply an affirmation that Midkiff 
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understood his right to remain silent. Nothing within that 

statement connotes a desire to cease all questioning. Here 

again, we decline to read Miranda so narrowly as to compel 

police interrogators to accept any statement, no matter how 

equivocal, as an invocation of the right to remain silent. As 

we noted in Akers v. Commonwealth, 216 Va. 40, 46, 216 S.E.2d 

28, 32 (1975), had Midkiff wished to terminate the questioning 

he could have simply said "I do not want to answer any more 

questions." 

 IV. 

 Midkiff's last contention is that his confession was 

involuntary. The standard of review for determining whether a 

defendant's confession was voluntary is well established. 

 "Whether a statement is voluntary is ultimately a 

legal rather than factual question. See Miller v. 

Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 450 (1985). 

 Subsidiary factual questions, however, are entitled 

to a presumption of correctness. Id. at 112, 106 

S.Ct. at 451. The test to be applied in determining 

voluntariness is whether the statement is the 

'product of an essentially free and unconstrained 

choice by its maker,' or whether the maker's will 

'has been overborne and his capacity for selfdetermination critically impaired.' Schneckloth v. 

Bustamonte, 412 U.S. 218, 225 (1973). In determining 

whether a defendant's will has been overborne, courts 

look to 'the totality of all the surrounding 

circumstances,' id. at 226, including the defendant's 

background and experience and the conduct of the 

police, Correll v. Commonwealth, 232 Va. 454, 464, 

352 S.E.2d 352, 357 (1987); Stockton, 227 Va. at 140, 

314 S.E.2d at 381." 

Burket v. Commonwealth, 248 Va. at 611, 450 S.E.2d at 132 

(citations omitted). If the suspect's "will has been overborne 
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and his capacity for self-determination critically impaired," 

the confession is considered involuntary and its use is 

unconstitutional. Schneckloth v. Bustamonte, 412 U.S. 218, 225 

(1973). Voluntariness is a question of law, subject to 

independent appellate review. Harrison v. Commonwealth, 244 

Va. 576, 581, 423 S.E.2d 160, 163 (1992). The test of 

voluntariness is whether, considering the totality of the 

circumstances, the confession was "the product of an 

essentially free and unconstrained choice by its maker." 

Schneckloth, 412 U.S. at 225. In assessing the surrounding 

circumstances, courts will consider the defendant's background 

and the details of the interrogation. Gray v. Commonwealth, 

233 Va. 313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 

873 (1987). 

 The record in this case indicates that Midkiff's will was 

not overborne and his capacity for self-determination was not 

impaired. Although Midkiff and Sheriff Carrico were friends, 

there is no evidence that Sheriff Carrico used any undue 

influence to get Midkiff to discuss the crimes during 

interrogation. Sheriff Carrico's offer to get Midkiff "help" 

if he talked to him about the murders cannot be considered 

coercion or inducement. Midkiff's confession was not any less 

a "free and unconstrained choice" by virtue of this friendship. 

 Furthermore, Midkiff is no stranger to the criminal justice 

system. Prior to the contested charges, Midkiff had been 
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convicted of five felonies, starting at the age of eighteen. 

He was 27 years old at the time of the murders in this case. 

It is apparent that Midkiff has experienced several prior 

police interrogations. 

 Additionally, while the interrogation process lasted well 

into the early morning hours of December 6, 1991, and took 

place at a location approximately 40 miles from Midkiff's home, 

these factors are not sufficient to establish that his will was 

overborne. All police interviews of suspects have coercive 

aspects to them by virtue of the fact that the interrogating 

officer is part of a system which may ultimately charge the 

suspect with a crime. Oregon v. Mathiason, 429 U.S. 492, 495 

(1977). With regard to the investigation in this case, Midkiff 

voluntarily went to the sheriff's office for questioning after 

learning from his brother-in-law that Sheriff Carrico wanted to 

talk to him. In fact, when he was initially given his Miranda

rights at the sheriff's office, Sheriff Carrico testified that 

Midkiff said something to the effect that "he didn't need to 

know them, that he already knew them." Later, Midkiff 

willingly went to the state police station to submit to 

polygraph examinations and was again given his Miranda rights 

before the polygraphs and before signing two written 

confessions. In Midkiff's second statement, he acknowledged 

that he "freely" waived his rights. The evidence demonstrates 

that Midkiff voluntarily, knowingly, and intelligently waived 
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his Miranda rights and agreed to submit to questioning. 

Viewing the totality of the circumstances, the evidence simply 

does not suggest any other conclusion. 

 V. 

 In conclusion, we find no reversible error in the judgment 

of the Court of Appeals. Midkiff did not clearly and 

unambiguously invoke his constitutional right to counsel or his 

right to remain silent. Under the totality of the 

circumstances, his confession was voluntary. Therefore, for 

the reasons set forth, we will affirm the judgment of the Court 

of Appeals. 

Affirmed.