Donna Lynn Allen, a student at the University of Georgia, was stabbed to death on the University’s Athens campus. Warren Reid Hall was convicted of her murder and sentenced to life imprisonment. He appeals, enumerating four errors; we affirm. 1
*268 1. In his first enumeration, appellant contends that the trial court erred in admitting a custodial statement made by appellant after he had invoked his right to counsel. The facts pertinent to this enumeration are as follow.
The victim was murdered on December 21, 1983. Appellant was arrested by Athens police on the afternoon of December 28, 1983, on suspicion of having used a gun to assault a woman earlier that day in a local shopping center parking lot. Appellant was taken into custody and advised of his Miranda rights by an arresting officer, Athens Police Corporal Bobby Tribble. Thereafter, he was driven to an Athens police station and was interrogated by Tribble and two other police officers, Detective Jeff Ingram of the Athens Police and Major Chuck Horton of the University of Georgia Police, for about forty to forty-five minutes. The interrogation initially focused on the December 28 aggravated assault and a similar incident which had occurred the previous day, in which a woman had been attacked with a knife.* 2
About fifteen or twenty minutes into the questioning session, appellant stated, “I guess I’m going to have to see a lawyer sometime.” He was asked by Horton whether he wanted to see a lawyer at that time, to which he replied, “no, not now, just sometime.” The interrogation continued. About twenty-five or thirty minutes later, the subject matter of the interrogation changed from the shopping center incidents to the Allen murder. Appellant denied responsibility for the murder, and asked one of his interrogators, “when do you think I’ll get to see a lawyer.” 3 There was no response to appellant’s question. At that point, the questioning ceased, and appellant was transported to the Clarke County Jail.
Two days later, on December 30, 1983, appellant was interrogated a second time, by Maj. Horton and Det. Ingram. This interrogation, which lasted for about three and one-half hours, concentrated on
*269
the Allen murder. Before this second interrogation, appellant was again advised of his
Miranda
rights. Appellant asked Ingram and Horton whether, if he signed the
Miranda
form, “did that mean he would have to talk to us every time we come [sic] to talk to him?” They “told him no; that this was concerning this time we were there. And if we asked him anything that he didn’t want to answer he didn’t have to answer it. And if he decided he wanted to stop and he wanted us to leave, we would do that.”
4
Horton asked appellant whether he would talk with the officers without an attorney present; Hall said he would, and signed the
Miranda
waiver form. During this questioning session appellant admitted that he killed the victim. Both the December 28 and 30 statements were admitted into evidence at appellant’s trial following a hearing pursuant to
Jackson v. Denno,
On appeal, Hall does not challenge the admissibility of his December 28 statement. However, he contends that he invoked his Miranda rights at the end of the December 28 interrogation, thus rendering his December 30 statement inadmissible because it was derived in violation of his Fifth Amendment right to counsel. More specifically, appellant contends that his question at the end of the December 28 interview clearly invoked his right to counsel. In the alternative, he contends that even if the question was not a clear invocation of the right to counsel, it was at least ambiguous, and the police therefore should have foregone further interrogation, except to clarify his meaning.
Appellant’s contentions raise several distinct issues, which we will consider seriatim. The first is whether Hall’s question, “when do you think I’ll get to see a lawyer,” constituted a clear and unequivocal request for the presence of counsel and, if not, whether it was an arguably ambiguous or inartful request for counsel.
“An accused in custody, ‘having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,’ unless he validly waives his earlier request for the assistance of counsel.
Edwards v. Arizona,
With respect to the first inquiry embodied by the Supreme Court’s prophylactic rule, it is, as the instant case demonstrates, not always easy to determine whether the accused actually invoked his right to counsel. The existence of this problem was recognized in Smith v. Illinois, supra, 105 SC, wherein the Court stated, “[o]n occasion, an accused’s asserted request for counsel may be ambiguous or equivocal[,]” 83 LE2d at 494, but declined to “decide the circumstances in which an accused’s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself,” id. at 496.
However, some guidance may be found in a decision emanating from the Court of Appeals of Washington.
State v. Smith,
Turning to the facts of this case, we conclude that Hall’s utterance at the end of the December 28 interrogation was not a definite request for assistance of legal counsel before further interrogation; for example, appellant may have been perfectly willing to continue answering questions without an attorney, while at the same time have been merely curious about the possibility of being provided the assis *271 tance of counsel at later stages of the criminal process, or perhaps, affirmatively have been requesting counsel for those later stages, see Berry v. State, supra, 254 Ga. 5 Supporting this interpretation is the fact that, just twenty-five to thirty minutes previously, Hall had stated that he wished to see a lawyer “sometime,” but not during the interrogation.
Yet, the very ambiguity of his second reference to an attorney was sufficient to alert the investigators to the possibility that he might have been requesting present legal aid, particularly in light of the fact that the police had recently changed the topic of questioning to the Allen murder — it is reasonable to infer that Hall, suddenly faced with the possibility that he was the target of a murder investigation, may have changed his mind and decided he did require the assistance of counsel during further questioning about the Allen case, whereas he may not have felt the need for assistance during interrogation about the less serious aggravated assaults. Thus, we find that Hall’s question at the end of the December 28 interrogative session was not a clear invocation of his Fifth Amendment right to the presence of counsel, but it was at least an arguably ambiguous or inartful request of that type.
2. The focus of our inquiry then becomes what is the appropriate response of police officers under such circumstances. As with the issue discussed in Division 1, supra, the Supreme Court has recognized the existence of this problem: “[C]ourts have developed conflicting standards for determining the consequences of such ambiguities.”
Smith v. Illinois,
supra, 83 LE2d at 494. “Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. See, e.g., People v. Superior Court,
Has any of the three approaches outlined by the Supreme Court been adopted in Georgia? In
Vaughn v. State,
Vaughn
was cited and applied in
State v. Summers,
Notwithstanding the Court of Appeals’ apparent assumption, our holding in
Vaughn
was not predicated upon the
Nash v. Estelle
approach to equivocal statements. In
Vaughn,
the appellant had “told the sheriff he wanted to talk to a lawyer but couldn’t afford one.”
We have examined numerous state and federal decisions which have addressed this problem, and many have elected to follow the
Nash v. Estelle
approach. See, e.g.,
State v. Smith,
This reasoning was echoed by the Court of Appeals of Alaska in
Hampel v. State,
supra,
We therefore make explicit our approval of the Fifth Circuit rule, and adopt it as the rule to govern the evaluation of custodial interrogations in the courts of this state. Having done so, we apply that rule to the instant case, and find that at the point that Hall said, “when do you think I’ll get to see a lawyer,” the scope of any subsequent interrogation should have been narrowed to an attempt to clarify the nature of Hall’s question. Thompson v. Wainwright, supra, 601 F2d at 771-72.
3. Thus, the remaining issue is whether the conversation between appellant and his interrogators at the commencement of the December 30 session operated as a proper clarification of appellant’s statement at the end of the December 28 interrogation.
In this regard, “an interrogating officer may [not] utilize the guise of clarification as a subterfuge for coercion or intimidation. As the Supreme Court reiterated in
Brewer v. Williams,
Applying this caveat to the facts of this case, we note at the outset that a more preferable course for Hall’s interrogators to have followed would have been a short and direct question such as “Do you want an attorney now?”, posed immediately after Hall’s inquiry, “When do you think I’ll get to see a lawyer.” See
State v. Smith,
supra,
The latter proposition is illustrated by the facts and holding of
State v. Smith,
supra,
After ruling that Smith’s question was an equivocal request for counsel which required the officers to cease interrogation at least until the request was clarified, the Court of Appeals of Washington held that Smith had “sufficiently clarified his request when, after reflection, he signed the waiver form and spoke to the officers.” Id. at 1003.
In the instant case, the response of the police officers, i.e., their *275 rereading of Miranda rights and subsequent questions, was neutral, and did not constitute a subterfuge for eliciting a waiver under the guise of clarification. Moreover, there is no evidence that the police engaged in interrogation or coercive tactics during the two-day interim. We therefore find that the officers’ response to Hall’s equivocal request at the end of the December 28, 1983, interview was appropriately limited to clarifying that query, and that their efforts at clarification showed that Hall did not intend to invoke his Fifth Amendment right to counsel by virtue of that equivocal request. Accordingly, we hold that the trial court did not err by admitting appellant’s December 30, 1983, statement into evidence.
4. Appellant’s second enumeration complains of the admission of a transcript of an interview between himself and a graduate student in clinical applied psychology.
Several months before the murder, the Greene County Department of Family and Children Services referred appellant for treatment to the University of Georgia Psychology Clinic. There, he was treated by a licensed clinical applied psychologist (a tenured professor on the University faculty), who was assisted by a graduate student. On February 17, 1983, during the course of an interview between the student and appellant, appellant made certain damaging admissions, to the effect that he sometimes thought about “finding somebody . . . and raping them and then killing them.” Before trial, appellant moved in limine to exclude the transcript of the interview, on the ground that it was a privileged communication under OCGA § 43-39-16, which provides that “[t]he confidential relations and communications between a licensed applied psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.” The trial court denied the motion, and Hall appeals that ruling, with appellant and the state raising numerous contentions in this regard.
However, in light of our holdings in Divisions 1 through 3, supra, we need not consider these arguments, for, assuming arguendo that the admission into evidence of Hall’s statement to the graduate student was erroneous, the contents of his December 28 and 30 statements, which included his statement that he murdered Ms. Allen, made it highly probable that the error did not contribute to the verdict, and therefore did not harm the appellant.
Johnson v. State,
5. In his third enumeration, Hall argues that the trial court erred in admitting evidence of the two separate incidents, on December 27 and December 28,1983, in which he used weapons to attack women in public areas. These incidents were offered as similar offenses for purposes of showing identity, intent, bent of mind, course of conduct,
*276
and malice. We find that they were not inadmissible for any of the reasons urged by the appellant.
Williams v. State,
6. The fourth enumeration concerns appellant’s contention that the trial court erred in excluding for cause venirepersons who professed scruples against the death penalty. We find no error.
Parks v. State,
7. We have reviewed the record, and we find that the evidence was sufficient to enable a reasonable trier of fact to find that appellant Hall was guilty as charged beyond a reasonable doubt.
Jackson v. Virginia,
Judgment affirmed.
Notes
The victim was murdered on December 21, 1983. Hall was indicted on February 21, 1984. On July 11 he was reindicted, and a nolle prosequi on the original indictment was *268 entered August 22.
The state sought the death penalty. On September 19,1984, a jury returned a verdict of guilty. The following day the jury imposed a life sentence. Hall filed a motion for new trial on September 27, which was denied February 13,1985. The court reporter completed certifying the transcript on that day.
Hall filed his notice of appeal on March 15, 1985, and the appeal was docketed in this court April 18. Thereafter, this court granted an extension of time until May 22 for Hall to file his enumerations of error and brief. On August 23, 1985, appellant submitted his appeal for decision without oral arguments.
We are informed by appellant’s counsel that after the appellant was convicted of murder he pled guilty to the December 27 and 28 attacks, and is now serving a total sentence of 45 years’ imprisonment therefor.
The quotations in the above paragraph are from the Jackson v. Denno testimony of Tribble. The three officers’ testimony as to the content of appellant’s statements varied in certain respects. This is not surprising, since the officers did not tape-record the interviews or take contemporaneous handwritten notes, and it was not until January 3, 1984, that Horton and Ingram, relying on their memories alone, reconstructed the two interrogations.
The quotations in this paragraph are from Ingram’s Jackson v. Denno testimony.
Where a request for counsel “is for a specific purpose other than interrogation, such as to have an attorney at trial, and does not encompass a ‘desire to deal with the police only ■ through counsel,’
Edwards v. Arizona,