COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Elder and Bray 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 2484-00-2 JUDGE RICHARD S. BRAY 

 APRIL 17, 2001 

DYLAN LOPEZ TYREE 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Denise Y. Lunsford; Kelly A. Hobbs (George H. 

Dygert & Associates, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Dylan Lopez Tyree (defendant) was indicted in the trial court 

for first degree murder, robbery, burglary and related use of a 

firearm, violations of Code §§ 18.2-32, -58, -91 and -53.1, 

respectively. Alleging violations of his constitutional right to 

remain silent, defendant successfully moved the court to suppress 

his post-arrest statements to police. The Commonwealth appeals to 

this Court pursuant to Code § 19.2-398, maintaining defendant did 

not properly assert his right to silence, but, even so, police 

committed no violation. We disagree and affirm the order. 
 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

I. 

 On appeal of a ruling on a motion to suppress evidence, we 

consider the evidence in the light most favorable to the 

prevailing party below, defendant in this instance, together 

with all reasonable inferences fairly deducible from such 

evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 

407 S.E.2d 47, 48 (1991). The burden is upon the Commonwealth 

"to show the trial judge's ruling . . . constituted reversible 

error." Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d 

835, 838 (1998). 

 Defendant was arrested for the subject offenses by Albemarle 

County police at 9:30 a.m. on October 8, 1998. Shortly 

thereafter, county Detectives Hanover and Henshaw advised 

defendant of his Miranda rights, and he agreed to speak with 

police. During the ensuing interview, which spanned "fifteen, 

maybe twenty minutes," defendant "just talked," without indicating 

"any concern or being angered or despondent or anything," and 

denied involvement in the offenses. However, when Detective 

Hanover questioned his whereabouts at the time of the crimes, 

defendant became "agitated" and responded, "I'm not saying shit to 

you. I wasn't involved in any of that. I don't know what you're 

talking about." As a result, Hanover concluded "the interview 

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wasn't progressing anywhere," Henshaw understood defendant "didn't 

have anything else to say," and the two "decided to stop the 

interview." 

 Shortly thereafter, at approximately 11:00 a.m., defendant 

was transported to Charlottesville police headquarters and 

immediately served with a warrant charging a grand larceny in that 

jurisdiction. At 12:22 p.m., Charlottesville Police Sergeant 

Hudson advised defendant of his Miranda rights, and, again, he 

agreed to an interview. At the outset of interrogation, Hudson 

reminded defendant, "You've been charged with some burglaries in 

[Charlottesville] and you've been charged with homicide in 

[Albemarle] [C]ounty," adding "[p]art of the opportunity you have 

here is to tell us about that." Hudson cautioned defendant, 

"you're in a real serious jam" and "now is the time to get [the 

murder] straightened out." After defendant had responded to 

numerous inquiries pertaining to the Albemarle County homicide, 

repeatedly denying involvement despite Hudson's accusations to the 

contrary, he declared, "I don't want to talk to you no more. . . . 

I ain't no damn murderer" and concluded the interview. 

 Prior to trial on the instant offenses, defendant moved to 

suppress his statements to Sergeant Hudson, contending they were 

unconstitutionally obtained following invocation of his right to 

remain silent. Following a related hearing, the court granted the 

motion, finding defendant had 

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invoke[d] his right to remain silent at the 

conclusion of the interview with the county 

detective . . . . The county police did 

recognize the defendant's wish to not talk. 

This [c]ourt finds that the police did not 

"scrupulously honor" the right to remain 

silent as [Sergeant] Hudson told the 

defendant that he wished to ask him about 

the county murder after the defendant had 

told county police he had nothing to say, 

which the county police had honored. The 

second interrogation was not limited to 

questions about crimes other than the murder 

charge. Accordingly, this [c]ourt finds 

that . . . any statement obtained by 

Detective Hudson on October 8, 1998 at 

12:22 p.m. and thereafter is suppressed. 

The Commonwealth appeals. 

II. 

 The Commonwealth first contends defendant's comment to the 

Albemarle County detectives, "I'm not saying shit . . .," "did 

not constitute an unambiguous or clear" assertion of the right 

to remain silent. 

 "For a confession given during custodial interrogation to 

be admissible, the Commonwealth must show that the accused was 

apprised of his right to remain silent and that he knowingly, 

intelligently, and voluntarily waived that right." Green, 27 

Va. App. at 652, 500 S.E.2d at 838. Once an accused waives the 

right to silence, such waiver "'will be presumed to continue 

. . . until the suspect manifests . . . his desire to revoke 

it.'" Id. (citation omitted). However, "[t]he Virginia Supreme 

Court has declared that a clear and unambiguous assertion of the 

right to remain silent . . . is necessary before authorities are 

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required to discontinue an interrogation." Id. The test to 

ascertain if a suspect invoked the right to silence is an 

objective one, Davis v. United States, 512 U.S. 452, 459 (1994), 

and the attendant finding by the trial court is "a factual 

determination that will not be disturbed on appeal unless 

clearly erroneous." Mills v. Commonwealth, 14 Va. App. 459, 

468, 418 S.E.2d 718, 723 (1992) (citations omitted); see also

Green, 27 Va. App. at 651-54, 500 S.E.2d at 838-39 (trial court 

not "plainly wrong" in finding no clear and unambiguous 

assertion of right to remain silent). 

 Here, defendant abruptly and pointedly informed the 

Albemarle detectives, "I'm not saying shit to you," and said no 

more. His message was clearly understood by police and resulted 

in immediate termination of the interview by police. Under such 

circumstances, the trial court found, as a matter of fact, that 

defendant clearly and unambiguously asserted his right to remain 

silent, a conclusion supported by the record and not plainly 

wrong. 

 The Commonwealth's reliance upon Mitchell v. Commonwealth, 

30 Va. App. 520, 518 S.E.2d 330 (1999), and Green for a 

different result is misplaced. In Mitchell, the accused, after 

stating, "I ain't got shit to say to y'all," "proceeded to 

volunteer information" to police. Id. at 527, 518 S.E.2d at 

334. The accused in Green told investigators "he didn't have 

anything more to say . . . [and] if [the detective] thought that 

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he wanted to confess to some things he didn't do, that [the 

detective] might as well buckle up for the long ride," language 

clearly dissimilar from the instant record. 27 Va. App. at 651, 

500 S.E.2d at 837. 

III. 

 When an accused clearly and unambiguously asserts the right 

to remain silent, police must cease interrogation. Miranda v. 

Arizona, 384 U.S. 436, 473-74 (1966). "[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) (citation omitted) (emphasis 

added); Weeks v. Commonwealth, 248 Va. 460, 470, 450 S.E.2d 379, 

386 (1994). "Whether a person's decision to remain silent has 

been 'scrupulously honored' requires an independent examination 

of the circumstances." Pugliese v. Commonwealth, 16 Va. App. 

82, 88, 428 S.E.2d 16, 21 (1993). However, "[i]n 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). 

 In Weeks, the Virginia Supreme Court adopted the "case by 

case approach to determine [if] continued questioning was 

appropriate after an initial refusal to answer questions" 

suggested by the United States Supreme Court in Mosley. Weeks, 

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248 Va. at 471, 450 S.E.2d at 386. The Court further approved 

and applied the five inquiries mentioned in Mosley as pertinent 

to a resolution of the issue. Id.

First, 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." Second, whether there was an 

immediate cessation of the initial 

interrogation, and no attempt to persuade 

defendant to reconsider his position. 

Third, whether the police resumed 

questioning "only after the passage of a 

significant period of time." Fourth, 

whether Miranda warnings preceded the second 

questioning. Fifth, whether the second 

interrogation was limited to a crime that 

had not been the subject of the earlier 

interrogation. 

Id. (internal citations omitted). 

 Here, it is undisputed that defendant was properly advised 

of his Miranda rights prior to the initial interview in 

Albemarle County and voluntarily executed a related waiver. 

However, after briefly discussing the crimes with police, 

defendant clearly and unambiguously asserted his right to remain 

silent, a decision immediately respected by the Albemarle County 

detectives. Approximately two and one-half hours thereafter, 

defendant was transported to Charlottesville, charged with other 

offenses, once more advised of his Miranda rights and again 

submitted to police interrogation. 

 At the inception of the second interview, Charlottesville 

Police Sergeant Hudson emphasized the Albemarle County homicide, 

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the seriousness of the crime, the attendant "jam" confronting 

defendant and the need to truthfully address the charge. The 

subsequent questioning repeatedly focused on the murder and 

related events, circumstances clearly the subject of defendant's 

prior assertion of his right to silence. The trial court 

concluded such conduct violated defendant's constitutional right 

to remain silent and the related lessons of Miranda. Applying 

the inquiries appropriate to a Weeks and Mosley analysis to the 

instant facts, our independent examination of the record 

confirms that Charlottesville police did not properly honor 

defendant's rights by resuming interrogation with respect to an 

offense then subject to his right to silence exercised only 

three hours previously. 

 Accordingly, we affirm the disputed order and remand to the 

trial court for such further proceedings as deemed appropriate. 

 Affirmed and remanded. 

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