COURT OF APPEALS OF VIRGINIA
Present: Judges Annunzi ata, Bumgardner and Frank Argued at Chesapeake, Virginia

SHAREF McDOWELL MEMORANDUM OPINION * BY v. Record No. 3065-02-1 JUDGE RUDOLPH BU MGARDNER, III NOVEMBER 12, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TH E CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge Andrew G. Wiggin (Andrew G. Wiggin, P.C., on brief), for appellant. Eugene Murphy, Assistant Attorn ey 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 Mi randa 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 evid ence to support them and we give due weight to the inferences drawn from those facts by resident judges and lo cal law enforcement officers.” Id. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - Following his arrest, Detectives Fox and Gr over met with the defendant at the police station. Fox read the defendanthis Miranda rights from a prep rinted card. He asked the defendant whether he understood his rights, a nd the defendant responded, “Uh-huh,” and nodded his head up and down. As Fox began inquiring wh ether the defendant wished to cooperate with the police, the defendant interrupted and asked upon what charges they we re holding him. Fox answered the question, and aske d the defendant again, “if he wanted to cooperate.” Fox explained what that meant, but the defendant “did n’t answer.” He remained silent. When Fox asked further questions, the defendant bega n responding, and then made incriminating

statements. 1 Grover described the defendant as “lai d back” and “pretty relaxed” during the interview. Fox testified the defendant “was sitt ing 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 an swer their questions and that he said no when they asked if he wanted to cooperate. He also denied aski ng the detectives to sp ecify the charges. “[W]hether a waiver of Miranda rights was made knowingly and intelligently is a question of fact, and the trial court’s resoluti on of that question is entitled on appeal to a presumption of correctness.” Harris on 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).

1 Fox asked the defendant if he was given a ur ine 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 th at 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 jump ed off a second-floor hotel balcony where the transaction took place.- 3 - When an accused understands his rights, rema ins 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 interrogate d.” North Carolina v. Butler, 441 U.S. 369, 373 (1979). As explained inConnecticut v. Barrett, 479 U.S. 523, 529 (1987), “Mirandagives the defendant a right to choose between speech a nd silence, and Barrett chose to speak.” In this case, the defendant did not simply remain silent after receiving the Miranda warning. He indicated clearly thathe understood those rights. He then chose to interject himself into the interview. The police answered hi s question and continued with their question of whether the defendant wanted to cooperate. When the officers sought his cooperation, th e defendant did not expressly waive his rights or invoke them; he was silent. 2 The defendant’s silence was equivocal. It may have reflected indecision, ambivalence, or even calcul ation 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 sile nt.” Midkiff v. Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116 (1995). Midkiff mainta ined 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 counsel).

2 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. Itthen held Harrison’s statements were knowingly and voluntarily made when the police urge d 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 - The trial court declined to interpret the defenda nt’s silence as an i nvocation of the right to remain silent. When the officers asked quest ions pertaining to the charged offenses, the defendant chose to answer. The defendant’s overall conduct 3 and responses permit a finding that the defendant did not invoke hi s 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 circumstan ces did not require the officers to stop asking questions, and the evidence supports the trial court’ s ruling that the defenda nt willingly talked to the officers with a full appreciation of his Miranda rights. Accordingly, we affirm. Affirmed.

3 In determining whether his waiver was ma de knowingly and voluntarily, we may also consider the defendant’s “bac kground and experience and the c onduct 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 char ge. At that time, th e defendant was given Miranda warnings, waived them, and confesse d. These facts do not support the defendant’s contention that he invoked his ri ght to remain silent and th at the detectives failed to “scrupulously honor” that request.