COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Chesapeake, Virginia 

WALTER D. BOONE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0934-99-1 JUDGE SAM W. COLEMAN III 

 APRIL 4, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Ben Pavek, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Walter D. Boone was convicted in a bench trial of 

conspiracy to commit robbery, carjacking, and use of a firearm 

during the commission of a felony. On appeal, he argues that 

the trial court erred by denying his motion to suppress his 

statement made to the police. We disagree and affirm. 

BACKGROUND

 Derrick Taylor and Tiante Carter were washing Taylor's car 

at a car wash just after midnight. Boone and another individual 

approached Taylor and inquired of him whether he was interested 
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in buying marijuana. Taylor responded that he did not have any 

money but that he could get some money. At that point, Boone 

pulled up his shirt and exposed a firearm that was tucked in the 

waistband of his pants. Boone ordered Taylor and Carter to walk 

across the street. Boone then stole Taylor's car; however, when 

Boone drove the car from the parking lot, he hit a telephone 

pole and a tree. Boone abandoned the car and fled. 

 Shortly after the incident, Boone was apprehended, 

arrested, and transported to the police station. At 

approximately 3:30 a.m., Boone was taken to an interrogation 

room; at 5:20 a.m., Sergeant Samuel A. Thomson read Boone the 

Miranda warnings and attempted to question him. Thomson 

testified that Boone said "he did not wish to talk to [him] at 

that time." Thomson immediately ceased questioning Boone and 

left the room. At 8:20 a.m., Thomson moved Boone to a different 

interrogation room where Boone would have access to water and a 

restroom. Thomson testified that he again informed Boone of his 

rights under Miranda and, at that point, Boone indicated that he 

wanted to make a statement. 

 In Boone's statement, he admitted that three other 

codefendants drove to the car wash where they encountered Taylor 

and Carter. Boone brandished a firearm and asked Taylor for his 

money. Boone then ordered the victims to walk across the 

street. Boone acknowledged that he attempted to steal Taylor's 
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car but drove into a telephone pole and onto a curb. Boone and 

the codefendants fled the scene and were later apprehended. 

 The trial court found that Boone unequivocally invoked his 

right to remain silent when he stated that he "did not wish to 

talk to [the officer] at that time." However, the trial judge 

also found that the officer "scrupulously honored" Boone's right 

to remain silent and that Boone's statement was not unlawfully 

obtained. A significant period of time elapsed between the 

first and second interviews. Boone was again advised of his 

Miranda rights, and he waived those rights before the second 

interview in which he confessed to having committed the crimes. 

ANALYSIS

 Boone argues that the trial court erred by denying his 

motion to suppress his confession because the law enforcement 

authorities failed to "scrupulously honor" his request to remain 

silent. 

 "If the individual indicates in any manner, at any time 

prior to or during questioning, that he wishes to remain silent, 

the interrogation must cease." Miranda v. Arizona, 384 U.S. 

436, 473-74 (1966). "An accused in custody may waive his fifth 

amendment rights, but the Commonwealth must prove by a 

preponderance of the evidence that the waiver was made 

voluntarily, knowingly and intelligently." Pugliese v. 

Commonwealth, 16 Va. App. 82, 87, 428 S.E.2d 16, 21 (1993). 
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"[T]he admissibility of statements obtained after the person in 

custody has decided to remain silent depends under Miranda on 

whether his 'right to cut off questioning' was 'scrupulously 

honored.'" Michigan v. Mosley, 423 U.S. 96, 104 (1975). 

"Whether a person's decision to remain silent has been 

'scrupulously honored' requires an independent examination of 

the circumstances." Pugliese, 16 Va. App. at 88, 428 S.E.2d at 

21. In making this determination, an appeals court is "bound by 

the trial court's subsidiary factual findings unless those 

findings are plainly wrong." Wilson v. Commonwealth, 13 Va. 

App. 549, 551, 413 S.E.2d 655, 656 (1992). 

 This Court considers the following five factors in 

determining whether an accused's invocation of his right to 

remain silent was scrupulously honored: 

[f]irst, whether defendant "was carefully 

advised" before the initial interrogation 

"that he was under no obligation to answer 

any questions and could remain silent if he 

wished." [Mosley, 423 U.S. at 104]. 

Second, whether there was an immediate 

cessation of the initial interrogation, and 

no attempt to persuade defendant to 

reconsider his position. Id. Third, 

whether the police resumed questioning "only 

after the passage of a significant period of 

time." Id. at 106. Fourth, whether Miranda

warnings preceded the second questioning. 

Id. at 104. Fifth, whether the second 

interrogation was limited to a crime that 

had not been the subject of the earlier 

interrogation. Id.
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Weeks v. Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386 

(1994). 

 Here, Boone was advised of his Fifth Amendment rights 

before the initial interview. After Boone indicated that he did 

not wish to make a statement "at that time," the officer 

immediately ceased the interview and no attempt was made to 

pressure Boone to reconsider his position. Three hours elapsed 

between the first and second interviews, and prior to the second 

interview, Boone was again advised of his Miranda rights. Boone 

indicated that he understood his rights and said that he wished 

to make a statement. 

 Even though the officer attempted to question Boone in the 

second interview regarding the same incident that the officer 

questioned him about during the first interview, we find that 

the second attempt to question Boone was not a violation of his 

Fifth Amendment right to remain silent. See Weeks, 248 Va. at 

471-72, 450 S.E.2d at 387 (finding that confession not 

constitutionally invalid even though second interview involved 

some of the same subject matter discussed during the initial 

interview). Boone unequivocally invoked his right to remain 

silent during the first interview; however, he stated that he 

did not wish to speak with the officer "at that time." His 

statement implied that he was considering whether to cooperate 

with the officers and whether he would be willing to make a 
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statement at a later time. After several hours had passed, 

Boone was again advised of his Miranda rights, at which time he 

made a statement. Boone was not pressured or subjected to 

coercive forces. We find that the reinitiation of contact after 

Boone invoked his right to remain silent was not an attempt to 

"wear down his resistance and make him change his mind." 

Mosley, 423 U.S. at 105-06. We find that the police 

"scrupulously honored" Boone's right to remain silent. 

Accordingly, we hold that the trial court did not err by denying 

his motion to suppress. We, therefore, affirm. 

 Affirmed.