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Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

Record No. 3065-02-1






NOVEMBER 12, 2003


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,
699 (1996)).

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.[3]
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[4]
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.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


[2]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.


[3]The defendant’s
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.


[4]In determining
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.