Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

John R. Wylde, 3001 Hennepin Avenue South, Calhoun Square, Suite 309B, Minneapolis, MN 55408 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.[*]

Jimmy Earl Matthews was charged with two counts of first-degree murder in violation of Minn. Stat. § 609.185(1) and (3) (1996). The state appeals from a pretrial order suppressing Matthews' statements made while in custody. We affirm.

D E C I S I O N

This court will reverse a pretrial suppression order only if the state demonstrates clearly and unequivocally: (1) the trial court erred in its judgment; and (2) the error, unless reversed, will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn.1987).

The state argues the trial court clearly erred in concluding Matthews' "request for information" was an unequivocal and unambiguous request for counsel. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding questioning must cease only if suspect has unequivocally requested presence of counsel); State v. Jones, 566 N.W.2d 317, 323-24 (Minn. 1997) (holding (1) police must cease interrogation only after defendant unambiguously invokes right to counsel and (2) juvenile's request to speak with parent does not automatically invoke right to attorney); Bolding v. Commonwealth, 423 S.E.2d 212, 214 (Va. Ct. App. 1992) (holding defendant's statement "Can I have a lawyer here right this second?" not request for counsel where defendant has been fully advised of right to counsel, indicated he fully understood his rights to counsel, inquired about his right to counsel, and then voluntarily continued to discuss the case). The exact language used by the suspect is an important factor in determining if the suspect has invoked his right to counsel. See State v. Doughty, 472 N.W.2d 299, 303 (Minn. 1991) (holding defendant's question, "Shouldn't I have an attorney so you don't ask me any illegal questions?" although an ambiguous request for counsel, required officer to halt interview or clarify defendant's request); see also State v. Robinson, 427 N.W.2d 217, 221, 224 (Minn. 1988) (holding defendant denied right to counsel when police continued to question defendant after defendant stated if he was suspect in murder he wanted to talk to lawyer and "maybe" he should talk with lawyer).

The record demonstrates: (1) Matthews was interviewed in jail; (2) the officer provided Matthews with a Miranda warning prior to the start of the interview; (3) after requesting a break, Matthews asked, "Is there any way I can have [my] lawyer present right now?"; (4) in response to Matthews' request, the officer informed Matthews he would go "to the County Attorney and tell them what the situation is," and Matthews could have an attorney "but if you request to have an attorney, then I must cease my interview, terminate it and I must leave right now and I can tell you I will not be back; " (5) concluding his response to Matthews' request, the officer continued the interrogation by asking if Matthews would like to tell him "the truth about what happened out there;" and (6) Matthews did not initiate that conversation with the officer. Given these facts and our standard of review, we cannot say the trial court clearly erred in suppressing Matthews' statements. Because the trial court did not commit clear error in suppressing Matthews' statements, we need not address the issue of "critical impact."

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.