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Eaton v. Commonwealth9/21/1990
of Eaton was discussed, including the fact that unrelated property charges pending in
Rockingham County had been nolle prossed earlier that morning, thereby releasing the attorney appointed for Eaton on those charges.
At the beginning of the interrogation, Officer Dudley explained the Miranda warnings to Eaton, but no written explanation or waiver of rights was used. The interrogation was not tape recorded. The interview lasted approximately 45 minutes, during which time Sergeant Dudley testified, and his handwritten notes reflected, that Eaton made at least five references to an attorney including "Didn't you say I had a right to an attorney?" and, on at least two occasions, that "he ought to talk to an attorney."
After each reference to an attorney, the police officers reiterated that Eaton had a right to an attorney. Eaton remained silent. The police then reinitiated the interrogation with conversation concerning Eaton's girlfriend Judy, who was being buried that day.
At one point, after Eaton said, "Maybe I'd better talk to a lawyer," Sergeant Dudley left the room to confer with the Commonwealth's attorney concerning the implications of Eaton's reference to counsel. They decided to continue the interrogation and determine where they stood on the attorney question later. The interrogation finally concluded when Eaton again stated that he needed time to think.
On this record, Eaton's continued waiver of his rights was brought into question when he began referring to his right to counsel. As Eaton continued to refer to counsel, albeit at times in an ambiguous manner, the reactions of the police evidenced their own concern over the consequences of Eaton's statements. Yet, they took no affirmative action to remove the ambiguity and find out whether he wanted counsel. Rather, they orchestrated their actions in a manner which they believed would avoid the requirement of the presence of an attorney during the interrogation.
The rule adopted by the majority today encourages such activity, rather than encouraging police officers to determine in a straightforward manner the intent of persons in custodial interrogations regarding the exercise of their constitutional rights. That
end could easily be met by a rule which requires simply asking the clarifying question, "Do you want a lawyer?".
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