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the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
Record No. 3065-02-1
COMMONWEALTH OF VIRGINIA
BY JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 12, 2003
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Andrew G. Wiggin (Andrew G. Wiggin, P.C., on brief), for
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Sharef McDowell appeals his convictions of distribution of
cocaine and conspiracy to
distribute cocaine. The trial court denied his motion to
suppress incriminating statements
because it found the defendant waived his Miranda rights before
making the statements.
Concluding that the defendant did waive those rights, we affirm.
On appeal from a denial of a motion to suppress, the defendant
has the burden to
establish the ruling was an error. McGee v. Commonwealth, 25 Va.
App. 193, 197, 487 S.E.2d
259, 261 (1997) (en banc). "[W]e are bound by the
trial court’s findings of historical fact unless
‘plainly wrong’ or without evidence to support them and we
give due weight to the inferences
drawn from those facts by resident judges and local law
enforcement officers." Id. at 198, 487
S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690,
Following his arrest, Detectives Fox and Grover met with the
defendant at the police
station. Fox read the defendant his Miranda rights from a
preprinted card. He asked the
defendant whether he understood his rights, and the defendant
responded, "Uh-huh," and nodded
his head up and down. As Fox began inquiring whether the
defendant wished to cooperate with
the police, the defendant interrupted and asked upon what
charges they were holding him. Fox
answered the question, and asked the defendant again, "if
he wanted to cooperate." Fox
explained what that meant, but the defendant "didn’t
answer." He remained silent. When Fox
asked further questions, the defendant began responding, and
then made incriminating
Grover described the defendant as "laid back" and "pretty
relaxed" during the
interview. Fox testified the defendant "was sitting on a
bench . . . sort of slouched back, and he
seemed very calm . . . ."
The defendant’s recollection of the interview was different.
He testified that he told the
detectives he did not want to answer their questions and that he
said no when they asked if he
wanted to cooperate. He also denied asking the detectives to
specify the charges.
"[W]hether a waiver of Miranda rights was made knowingly
and intelligently is a
question of fact, and the trial court’s resolution of that
question is entitled on appeal to a
presumption of correctness." Harrison v. Commonwealth, 244
Va. 576, 581, 423 S.E.2d 160,
163 (1992). We consider whether the "totality of the
circumstances" supports the trial court’s
finding. Fare v. Michael C., 442 U.S. 707, 725 (1979).
When an accused understands his rights, remains silent after
warnings are given, and
engages in a "course of conduct indicating waiver,"
waiver "can be clearly inferred from the
actions and words of the person interrogated." North
Carolina v. Butler, 441 U.S. 369, 373
(1979). As explained in Connecticut v. Barrett, 479 U.S. 523,
529 (1987), "Miranda gives the
defendant a right to choose between speech and silence, and
Barrett chose to speak."
In this case, the defendant did not simply remain silent after
receiving the Miranda
warning. He indicated clearly that he understood those rights.
He then chose to interject himself
into the interview. The police answered his question and
continued with their question of
whether the defendant wanted to cooperate.
When the officers sought his cooperation, the defendant did not
expressly waive his
rights or invoke them; he was silent.
The defendant’s silence was equivocal. It may have
reflected indecision, ambivalence, or even calculation about
whether to cooperate. Miranda may
not be read "so narrowly as to compel police interrogators
to accept any statement, no matter
how equivocal, as an invocation of the right to remain
silent." Midkiff v. Commonwealth, 250
Va. 262, 268, 462 S.E.2d 112, 116 (1995). Midkiff maintained he
invoked his right to remain
silent with 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." Id. at 267, 462 S.E.2d at 115. The
Court held he had not. Cf. Davis v. United States, 512 U.S. 452,
459 (1994) (police not required
to stop questioning when suspect makes equivocal request for
The trial court declined to interpret the defendant’s silence
as an invocation of the right to
remain silent. When the officers asked questions pertaining to
the charged offenses, the
defendant chose to answer. The defendant’s overall conduct
and responses permit a finding that
the defendant did not invoke his right to remain silent, but
voluntarily waived it.
Evidence of coercive police activity is a prerequisite to
finding a waiver was not
voluntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986). The
evidence in this case does not
suggest coercive police activity. The circumstances did not
require the officers to stop asking
questions, and the evidence supports the trial court’s ruling
that the defendant willingly talked to
the officers with a full appreciation of his Miranda rights.
Accordingly, we affirm.
Code ? 17.1-413, this opinion is not designated for publication.
Fox asked the
defendant if he was given a urine test, would it be positive for cocaine
use. The defendant "shook his head from side to side
indicating no." Grover asked whether the
defendant brought three or four grams of cocaine. The defendant
responded, "‘It won’t even that
much.’" Fox then explained to the defendant that he
"could not believe that he had given the
cocaine to the white male . . . before he had received the
money." The defendant responded, "I
was not going to. I felt it." Additionally, the defendant
"almost bragged that he didn’t hurt
himself and that he was fine" after he jumped off a
second-floor hotel balcony where the
transaction took place.
reliance on Harrison for the proposition that silence amounts to an
invocation of the right to remain silent is misplaced. The Court
assumed Harrison invoked that
right by remaining mute after being advised of his Miranda
rights. It then held Harrison’s
statements were knowingly and voluntarily made when the police
urged his cooperation and he
reopened the dialogue by asking, "what was going to happen
to him." 244 Va. at 583-84, 423
S.E.2d at 164-65.
whether his waiver was made knowingly and voluntarily, we may also
consider 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). The
defendant had been
arrested thirteen months earlier on another charge. At that
time, the defendant was given
Miranda warnings, waived them, and confessed. These facts do not
support the defendant’s
contention that he invoked his right to remain silent and that
the detectives failed to
"scrupulously honor" that request.