The commonwealth has not presented affirmative evidence that defendant understood her Miranda rights and a Roanoke County Circuit Court grants her motion to suppress her confession in this case of forgery and uttering.
Upon receiving her Miranda warning, the officer asked defendant if she understood her rights, but she did not reply orally. The excerpt of the transcript shows: “Um, do you understand these rights that I’m … Okay, understand those rights? Are you willin’ to talk to me right now?” Defendant replies, “As much as I can. I don’t know?” She subsequently confessed.
The lesson of Berghuis v. Thompkins, 130 S.Ct. 2250 (2010), is that one who has been properly given his Miranda warnings and understands them does not waive those rights by remaining silent for a period of time before confessing. In order to invoke the right to remain silent one must do so unambiguously and unequivocally. Although that is an accurate statement of the law it does not apply to the facts of this case.
The portion of Berghuis that actually applies is the part where the Supreme Court restates the principle that while the prosecution need not show an express waiver of the defendant’s constitutional right to remain silent, it must show that a Miranda warning was given, that the accused made an uncoerced statement and that he or she understood those rights.
Here, defendant was given her Miranda warnings and made an uncoerced statement. However, the prosecution has not met its burden in proving that defendant understood her right to remain silent. The only evidence before the court is a transcript of the post arrest police interview that is silent as to defendant’s response when asked if she understood her rights. Although it appears from the language of the transcript that defendant probably nodded her head affirmatively when asked if she understood she had the right to remain silent, no such evidence was forthcoming. Speculation and supposition is not sufficient.
No evidence having been presented that defendant understood her Miranda warnings, the motion to suppress her statement is granted.
Commonwealth v. Newbill (Doherty) No. CR 1000119-00, April 25, 2011; Roanoke County Cir.Ct.; Ashley Sweet, Ass’t County Att’y; Stephen H. Kennedy Jr. for defendant. VLW 011-8-074, 2 pp.