Colorado’s second-highest court ruled last week that an El Paso County defendant did not clearly invoke his constitutional right to an attorney when he wondered whether police could “get me someone to talk to right now” during his interrogation.

Even though a Colorado Springs detective told Jacolby Hasan Williams he would “just proceed with the investigation without your side of the story” after Williams expressed interest in talking to an attorney, a three-judge panel for the Court of Appeals found the detective did not violate Williams’ rights by failing to obtain a lawyer.

“The words spoken by Williams in this matter do not amount to an unambiguous request for counsel. Rather, Williams’ statements indicate that he wished to explore the possible timing and logistics of having counsel present,” wrote Judge Katharine E. Lum in the panel’s Feb. 16 opinion.

The U.S. Supreme Court’s landmark decision in Miranda v. Arizona held that the government may not use a defendant’s statements from an in-custody interrogation unless the defendant is advised of his right to remain silent, that his statements may be used against him, and he is entitled to “the presence of an attorney.”

“If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning,” wrote Chief Justice Earl Warren in the 1966 decision.

But nearly three decades later, the Supreme Court addressed what happens when a defendant is unclear about whether he wishes to have a lawyer present during an interrogation. The court, in Davis v. United States, required questioning to cease only when a “reasonable police officer” would understand the defendant’s statement to be a request for an attorney.

While four members of the court would have required law enforcement interrogators to verify whether a defendant was, in fact, asking for a lawyer, a majority simply deemed it a “good police practice” to do so.

Police took Williams into custody on suspicion of raping a 13-year-old girl who represented that she was 17. Williams, who was 19, listened to Detective Jason Gasper read him a Miranda warning. The detective then asked if Williams would like to talk with him.

“I was wondering, like, if we could get someone here to talk right now,” Williams responded. “Like, if that’s possible.”

“What do you mean?” Gasper asked.

“Like, you guys will get me someone to talk to right now. Like, a lawyer,” explained Williams.

“Not right now,” Gasper replied. “What would happen in that scenario – we don’t just call attorneys down here. What would happen is that we just proceed with the investigation without your side of the story. Which could be important, could not be important.”

Williams said he would “rather give my side of the story” and that he wanted to talk to Gasper.

During Williams’ trial, the prosecution used statements from the interrogation to discredit Williams’ alibi. A jury convicted him on two counts of sexually assaulting a child and he received a sentence of 16 years to life in prison.

On appeal, Williams challenged the admissibility of his interrogation. District Court Judge Michael McHenry had found Williams’ statement about an attorney ambiguous “in a legal sense” and declined to exclude the interrogation.

Gasper “led Jacolby to believe that if Jacolby didn’t tell his side of the story at that moment, there would be no further opportunities to speak with police with counsel present,” wrote Deputy State Public Defender Lynn Noesner to the Court of Appeals. “The Attorney General apparently believes it is okay for law enforcement to affirmatively lie to teenagers, facing indeterminate lifetime charges, about their constitutional rights.”

The appellate panel, however, saw things differently. It relied on a 2016 decision of the Colorado Supreme Court, People v. Kutlak, that reset the standard for evaluating whether police failed to honor a defendant’s request for counsel. While the state Supreme Court had suggested over several years that judges look at whether a defendant’s statement “could” amount to a request, the proper question was whether an officer “would” understand it as a request, the court explained in Kutlak.

Based on Kutlak and the video of Williams’ interrogation, the panel decided Williams’ question of whether “we could get someone here to talk right now” was not a clear request for a lawyer.

“It was not misleading for Detective Gasper to indicate that it was not possible, as a logistical matter, for Williams to speak with an attorney ‘right now’,” wrote Lum.

Two members of the Supreme Court dissented in Kutlak at the time and reiterated last year their belief that Kutlak was wrongly-decided.

The appellate panel rejected Williams’ other evidence-related challenges to his conviction.

The case is People v. Williams.