COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

KENNETH WAYNE BOOTHE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1703-96-3 JUDGE JERE M. H. WILLIS, JR. 

 MAY 27, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SMYTH COUNTY 

A. Dow Owens, Judge Designate 

 Charles F. Lincoln for appellant. 

 Michael T. Judge, Assistant Attorney General 

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

brief), for appellee. 

 On appeal from his conviction for aggravated sexual battery, 

Kenneth Wayne Boothe, Jr. contends that the trial court erred in 

refusing to suppress statements he made to the police. 

Specifically, he argues that the trial court erred in finding: 

(1) that he was not in custody at the time he made the 

statements, (2) that he was properly advised of his Miranda

rights, and (3) that he did not request an attorney. Because we 

find that Boothe was properly advised of his rights and did not 

request an attorney, we affirm the conviction. 

 I. 

 At the time of the offense, Boothe lived with Norma Jean 

Hall and her three-year-old daughter. On the evening of April 

10, 1995, Hall's daughter complained that her "pee pee hurt[]." 

 

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

designated for publication. 
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Susan McFail, a friend of Hall's, observed blood in the child's 

vagina and noticed that the surrounding area was "real red." 

Boothe, Hall, and McFail took the child to the emergency room at 

10:50 p.m. 

 Upon arriving at the hospital, Boothe sat in the emergency 

room and Hall accompanied her daughter to the examination room. 

Police officers and social workers arrived shortly thereafter. 

McFail talked with two police officers and a social worker in a 

triage room adjacent to the emergency room. After she left the 

room, Boothe went in to talk to the police. Boothe gave signed 

statements to the police at three separate times: 1:20 a.m., 

3:35 a.m., and 4:20 a.m. 

 Officer O'Dell conducted the first interview. Officer 

Sheffield, two social workers, and possibly another officer were 

also present. Helen Frisbie, one of the social workers present, 

had known Boothe for approximately ten years. Prior to asking 

Boothe any questions, O'Dell explained to Boothe his Miranda

rights through a form which stated: 

 (a) You have the right to remain silent. 

 (b) Anything you say can be used against you 

 in court. 

 (c) You have the right to talk to a lawyer 

 for advice before we ask you any 

questions and to have him with you 

during questioning. 

 (d) If you cannot afford a lawyer one will 

 be appointed for you if you wish, 

if you are charged with an offense. 
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O'Dell orally explained the foregoing rights to Boothe and 

further advised him, "At any time that he spoke with us, that he 

could choose to stop, and he could choose at any point not to 

answer any questions that we asked him. Or, at any point, he 

could stop and ask for an attorney." 

 Boothe testified that he told O'Dell that he could not 

afford a lawyer. O'Dell did not recall that statement. He 

testified that Boothe never asked for a lawyer and never 

expressed a desire to speak with a lawyer before answering 

questions. O'Dell testified that had Boothe expressed a desire 

to confer with a lawyer, all questioning would have stopped. 

 O'Dell testified that Boothe stated that he understood his 

rights, had no further questions, agreed to talk to the officers 

and then signed the waiver form. Boothe was not under arrest at 

that time and was free to leave. Dr. Jeff Farrow, a 

psychologist, testified that although Boothe was of borderline 

intelligence, he was competent to stand trial and capable of 

understanding advice of his Miranda rights. 

 In his first statement, Boothe denied that he had injured 

the child. At the conclusion of the first interview, everyone 

left the room. O'Dell went to check on the victim. Sheffield 

went outside to smoke a cigarette. Boothe left the lobby and 

joined Sheffield outside. While outside, Boothe expressed 

concern to Sheffield about going to jail. Sheffield replied that 

if Boothe had something else he wanted to say, they would listen. 
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 Boothe told Sheffield that "he may have accidentally touched the 

child." Sheffield and Boothe then returned to the triage room. 

 At the beginning of the second interview, O'Dell informed 

Boothe that he was not under arrest, that "[h]e was free to 

leave" and that he was "free to not answer questions if he so 

desired." Boothe acknowledged that he understood his rights and 

stated that he wished to speak with the officers and social 

workers. At this point, two social workers and three or four 

police officers were present. Boothe gave a second statement at 

3:35 a.m., admitting that he had accidentally touched the victim 

while bathing her that morning. 

 O'Dell then left the room. Boothe and Sheffield remained, 

discussing "vehicle mechanics or something of that nature." 

During their conversation, Boothe told Sheffield that he "felt 

better that he had gotten that off his mind," referring to his 

statement that he accidentally touched the victim. Sheffield 

told Boothe that if there was anything else he wanted to tell 

them, they would be "glad to speak with" him. After Boothe told 

Sheffield that "there may have been some more injury," Sheffield 

contacted O'Dell. 

 A third statement was taken at 4:20 a.m. O'Dell again asked 

Boothe if he understood his rights, and Boothe responded "yes." 

Boothe, O'Dell, Frisbie, Sheffield, and another police officer 

were present. In response to questioning directed primarily by 

Frisbie, Boothe confessed to "touching" the victim on multiple 
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occasions. He stated that he was admitting his conduct because 

he feared it might lead eventually to "sexual activities." 

Boothe was arrested after he gave the third statement. 

 II. 

 Assuming, without deciding, that Boothe was in custody when 

he gave the statements, we hold that he was given proper and 

adequate advice of his rights as required by Miranda v. Arizona, 

384 U.S. 436 (1966). Miranda requires that before commencing a 

custodial interrogation, the police must inform the suspect that 

"he has the right to remain silent, that anything he says can be 

used against him in a court of law, that he has the right to the 

presence of an attorney, and that if he cannot afford an attorney 

one will be appointed for him prior to any questioning if he so 

desires." Miranda, 384 U.S. at 479. No precise form of recital 

is required to satisfy the Miranda requirement. Duckworth v. 

Eagan, 492 U.S. 195 (1989). A reviewing court need only inquire 

whether the warning given reasonably conveyed understanding of 

his rights to the suspect. California v. Prysock, 453 U.S. 355, 

359 (1981). 

 The written and oral advice given Boothe satisfied the 

Miranda requirement. See Poyner v. Commonwealth, 229 Va. 401, 

405, 407-11, 329 S.E.2d 815, 820, 821-23 (1985), cert. denied, 

474 U.S. 865 (1985). Boothe's acknowledgment that he understood 

his rights, together with Dr. Farrow's testimony that Boothe was 

capable of understanding his rights, supports the trial court's 
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finding that Boothe did in fact understand his rights and gave 

his statements voluntarily. 

 III. 

 Boothe next contends that his rights under Miranda were 

violated because the police continued to question him after he 

invoked his right to counsel. The record does not support this 

contention. When Boothe stated that he could not afford an 

attorney, O'Dell explained that he could request an attorney at 

any time and the questioning would stop. Boothe never asked to 

consult an attorney and never expressed the desire to consult an 

attorney before answering questions. 

 In Edwards v. Arizona, 451 U.S. 477 (1981), the United 

States Supreme Court prohibited police from continuing to 

interrogate a suspect if he has "clearly asserted his right to 

counsel." 451 U.S. at 485. Such an assertion must be "clear and 

unambiguous" "to invoke the Edwards rule." Midkiff v. 

Commonwealth, 250 Va. 262, 266, 462 S.E.2d 112, 115 (1995). 

 Boothe made no clear and unequivocal request for counsel. 

See Davis v. United States, 512 U.S. 452 (1994). Rather, his 

statement that he could not afford an attorney and the 

accompanying explanation by O'Dell of his right to counsel 

"sought to clarify one of the rights of which he had already been 

advised." Poyner, 229 Va. at 410, 329 S.E.2d at 823. 

Accordingly, there was no requirement that the police stop 

questioning Boothe. 
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 The judgment of the trial court is affirmed. 

 Affirmed.