COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

RAHEEM VAUTER 

 MEMORANDUM OPINION* BY 

v. Record No. 1062-96-2 JUDGE NELSON T. OVERTON 

 JULY 29, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Robert N. Johnson (Robert N. Johnson, Jr.; 

Robert N. & Anne M. Johnson, Inc., on 

briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Raheem Vauter appeals his conviction for possession of 

cocaine with intent to distribute. He contends that his 

statement to the police should not have been admitted at trial. 

We find that his statement was given voluntarily and with 

knowledge of his right to remain silent, and we affirm. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, we recite only those facts necessary to the 

disposition of this appeal. 

 Vauter was stopped at the Richmond bus station by Detective 

R. L. Armstead and was found with a plastic bag containing "tan 

chunks," later determined to be cocaine. Vauter was taken to the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

police station and questioned by Detective Stephanie Ruffin. 

Detective Ruffin read and filled out a standardized form that 

informed Vauter of his Miranda rights and that he was being 

interviewed in connection with possession of cocaine. Vauter 

wrote "yes" and initialed that he understood his rights. Ruffin 

then read him the sentence on the bottom of the form stating that 

he may voluntarily waive these rights. Vauter did not sign 

beneath the sentence, nor did he make any actions or statements. 

 He did not indicate his intention to remain silent, nor did he 

indicate a willingness to talk to the police. He did nothing. 

 Ruffin then starting filling out a general information form. 

 One of the questions on the form asks what type of drugs was 

found on the accused. Ruffin testified that she called to 

Detective Armstead, who was down the hall in another room, to ask 

what he had seized. When she did not hear Armstead's reply, she 

asked Vauter what it was, and Vauter said "crack."1

 Vauter contends that this statement was inadmissible at 

trial. He argues that he had asserted his right to remain 

silent, and that the police should not have questioned him 

further about the alleged offense. We disagree. A clear and 

unambiguous assertion of the right to remain silent is necessary 

 

 1Vauter gave a slightly different rendition of this incident, 

but his version was specifically rejected by the judge as 

incredible. 
 3 

before the police are compelled to cease questioning. See

Midkiff v. Commonwealth, 250 Va. 262, 266-67, 462 S.E.2d 112, 

115-16 (1995). Although a suspect may indicate his desire to 

remain silent "in any manner," Miranda v. Arizona, 384 U.S. 436, 

473 (1966), "Miranda should not be read so strictly as to require 

the police to accept as conclusive any statement, no matter how 

ambiguous, as a sign that the suspect desires to cut off 

questioning." Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d 

737, 741 (1976). Vauter's actions were not a clear and 

unambiguous assertion of his right to remain silent. After 

reading his list of rights and initialing that he understood 

them, he did nothing. 

 Vauter argues on appeal that the fact that he did not sign 

the rights waiver form constitutes an assertion of his right to 

remain silent. His argument is unpersuasive. First, we note 

that the standardized form used by the police is poorly drafted 

and we question whether Vauter's signature on the form would 

constitute a valid waiver of his Miranda rights. The sentence 

over the signature line read in entirety, "You may voluntarily 

waive or give up the above rights that have been explained to you 

and make a statement if you so desire." A signature under this 

sentence does not necessarily indicate that the undersigned does 

waive his rights. In fact, the significance of a signature is 

unclear. In the same manner, the lack of a signature has little 

significance. 
 4 

 Secondly, assuming arguendo that Vauter intended to have his 

lack of a signature signify a desire to remain silent, this 

action does not meet the standard for a clear and unambiguous 

assertion. An assertion is by definition and common 

understanding a positive act. Vauter did not even positively 

refuse to sign the form: he did nothing. His inaction, his mere 

silence, did not invoke his right to remain silent. See Midkiff, 

250 Va. at 267, 462 S.E.2d at 115 (finding that the statement "I 

don't got to answer that" does not indicate a clear and 

unambiguous desire to remain silent); see also Davis v. United 

States, 512 U.S. 452, 461 (1994) (holding that "Maybe I should 

talk to a lawyer" was not an invocation of the right to counsel); 

Mueller v. Commonwealth, 244 Va. 386, 396, 422 S.E.2d 380, 387 

(1992) (holding that "Do you think I need an attorney here?" fell 

short of being a clear assertion of the right to counsel). 

Because Vauter did not make any clear and unambiguous assertions 

of his right to remain silent, the police were free to continue 

questioning him.2

 Thus, Detective Ruffin was not prohibited from 

asking Vauter questions after having informed him of his rights 

and having ascertained that he understood those rights. Any 

answer he gave subsequently may be used against him at trial. 

 Accordingly, we affirm the conviction. 

 

 2This is true even if, as here, the police do not wish to take 

a statement at that time. 
 5 

 Affirmed.
 6 

Benton, J., dissenting. 

 I would hold that the trial judge erred in admitting into 

evidence Raheem Vauter's answer to Detective Ruffin's question. 

Accordingly, I dissent. 

 "Absent a knowing and intelligent waiver of the Fifth 

Amendment right against self-incrimination and the Sixth 

Amendment right to the assistance of legal counsel, a confession 

made by a suspect during in-custody interrogation is inadmissible 

in evidence against him." Harrison v. Commonwealth, 244 Va. 576, 

580, 423 S.E.2d 160, 162 (1992) (citing Miranda v. Arizona, 384 

U.S. 436 (1966)). "The Commonwealth bears the burden of proving 

by a preponderance of the evidence that the accused waived his 

Miranda rights." Mills v. Commonwealth, 14 Va. App. 459, 468, 

418 S.E.2d 718, 722 (1992) (citing Colorado v. Connelly, 479 U.S. 

157, 168 (1986)). "Courts indulge every reasonable presumption 

against a waiver of fundamental constitutional rights." White v. 

Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974). "[A] 

valid waiver will not be presumed simply from the silence of the 

accused after warnings are given or simply from the fact that a 

confession was in fact eventually obtained." Miranda, 384 U.S. 

at 475. 

 Detective Ruffin testified that she read each statement on 

the Miranda form to Vauter. She testified that she "asked him if 

he understood his rights; and if he did so, could he write 'yes' 

and place his initials beside it." Ruffin testified that Vauter 
 7 

wrote "yes" and placed his initials next to the word "yes." 

Ruffin then read the rest of the form, which stated that Vauter 

may waive his rights and make a statement. In response, Vauter 

"didn't motion or do anything." Ruffin testified that she "read 

the statement verbatim, and he did nothing. He didn't say no; he 

didn't say yes. He did nothing." Ruffin testified that she did 

not attempt to take a statement from Vauter because Vauter did 

not indicate that he was willing to make a statement. Ruffin 

then proceeded to ask Vauter routine questions "for the arrest 

sheet." During the course of completing the form, Ruffin asked 

another officer what substance they had seized from Vauter. 

Ruffin concluded that the other officer did not hear her. Ruffin 

then asked Vauter "what was it?" In response, Vauter stated 

"crack." 

 Based on this record and the presumption against a waiver of 

constitutional rights, see White, 214 Va. at 560, 203 S.E.2d at 

444, I would hold that the Commonwealth failed to prove that 

Vauter waived his right to remain silent. The evidence proved 

that upon telling Vauter of the option to waive that right, 

Vauter remained silent. Cf. Harrison, 244 Va. at 582, 423 S.E.2d 

at 164 (assuming without deciding that an accused's silence was 

"an implicit invocation of" the accused's Miranda rights). 

Indeed, Detective Ruffin testified that she understood by 

Vauter's response that Vauter did not desire to make a statement. 

 Given these circumstances, I would hold that the Commonwealth 
 8 

has failed to prove that Vauter waived his right to remain 

silent. 

 The majority reasons that Vauter failed to assert his right 

to remain silent in a clear and unambiguous fashion. To support 

its position, the majority cites cases in which the attempted 

assertion of Miranda rights followed a prior Miranda waiver and 

interrogation. See Davis v. United States, 512 U.S. 452, 455, 

461 (1994) ("We therefore hold that, after a knowing and 

voluntary waiver of the Miranda rights, law enforcement officers 

may continue questioning until and unless the suspect clearly 

requests an attorney."); Midkiff v. Commonwealth, 250 Va. 262, 

266, 462 S.E.2d 112, 115 (1995); Mueller v. Commonwealth, 244 Va. 

386, 394, 422 S.E.2d 380, 385 (1992); Lamb v. Commonwealth, 217 

Va. 307, 311-12, 227 S.E.2d 737, 740-41 (1976). The rule in 

those cases, that a clear and unequivocal assertion of Miranda

rights is required before the police are required to cease 

questioning, only applies when the police have already been 

questioning the accused pursuant to a valid Miranda waiver. 

Indeed, in Davis, the United States Supreme Court stated the 

following: 

 A suspect who knowingly and voluntarily 

waives his right to counsel after having that 

right explained to him has indicated his 

willingness to deal with the police 

unassisted. Although Edwards provides an 

additional protection--if a suspect 

subsequently requests an attorney, 

questioning must cease--it is one that must 

be affirmatively invoked by the suspect. 
 9 

Davis, 512 U.S. at 460-61; see also id. at 470-71 (Souter, J., 

concurring) (describing the Davis decision as "drawing a 

distinction between initial waivers of Miranda rights and 

subsequent decisions to reinvoke them"). When the accused has 

not waived his Miranda rights, however, he retains those rights 

until he knowingly and voluntarily waives them and any statement 

he makes during an interrogation is inadmissible. 

 Because the Commonwealth failed to prove that Vauter had 

waived his Miranda rights, the trial judge erred in admitting 

into evidence Vauter's answer to Detective Ruffin's question. 

Accordingly, I dissent.