COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Humphreys 

Argued at Chesapeake, Virginia 

ANTHONY T. ALSTON 

 MEMORANDUM OPINION* BY 

v. Record No. 2382-00-1 JUDGE ROBERT J. HUMPHREYS 

 SEPTEMBER 25, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dean W. Sword, Jr., Judge 

 Joseph R. Winston, Special Appellate Counsel 

(Public Defender Commission, on brief), for 

appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Anthony T. Alston appeals his convictions, after a bench 

trial, for statutory burglary and grand larceny. Alston 

contends that the trial court erred in denying his motion to 

suppress his statement, which he argues was the result of a 

custodial interrogation wherein he was refused his right to 

representation. Finding no error, we affirm his convictions. 

 During the early morning hours of February 12, 2000, Alston 

broke into the Tidewater Feed and Seed Store and stole seven 

"leather studded spiked dog collars." Each collar had a minimum 

value of $35. 

 

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

designated for publication.
 On April 21, 2000, Alston was arrested for another burglary 

and grand larceny that occurred on March 22, 2000 at the One 

Stop Pet Shop. He requested and was appointed counsel for these 

charges during his April 22, 2000 arraignment, and was retained 

in custody. 

 On May 9, 2000, Detectives M.B. Logwood and Al Donker of 

the Portsmouth Police Department removed Alston from jail and 

took him to the detective bureau. After arriving at the bureau, 

the detectives advised Alston of his Miranda rights. Alston 

waived his rights and agreed to speak with the detectives. 

Detective Logwood informed him that they wanted to interview him 

"in reference to a couple of [additional] burglaries that had 

occurred in the city." As a result of the questioning, Alston 

confessed to burglarizing the Tidewater Feed and Seed Store in 

February of 2000. He gave a written statement, as well as a 

taped oral statement. At no time during the questioning did he 

indicate that he was represented by counsel, nor did he request 

counsel. The detectives were unaware that Alston had been 

appointed counsel for the charges related to the March 22 

burglary. 

 At trial, Alston moved to suppress his statement arguing 

that it had been given in violation of his right to legal 

counsel. Specifically, Alston argued that since he had 

requested appointed representation for the charges related to 

the March 22 burglary, he had invoked his right to counsel for 

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purposes of not only those particular charges, but also for any 

other unrelated charges for which police might want to question 

him. The trial court denied Alston's motion, noting that there 

was no evidence Alston had invoked his Fifth Amendment right to 

counsel for either set of charges. Thus, the court found that 

Alston's initial request for appointed counsel on the unrelated 

charges fell within the Sixth Amendment, which does not apply to 

other offenses that may come to the attention of police. 

On appeal from a trial court's denial of a 

motion to suppress, we must review the 

evidence in the light most favorable to the 

Commonwealth, granting to the Commonwealth 

all reasonable inferences fairly deducible 

from it. The findings of the trial court 

will not be disturbed unless plainly wrong 

or without evidence to support them. When 

reviewing the trial court's denial of a 

defendant's motion to suppress evidence, 

"[t]he burden is upon [the defendant] to 

show that th[e] ruling, when the evidence is 

considered most favorably to the 

Commonwealth, constituted reversible error." 

McCloud v. Commonwealth, 35 Va. App. 276, 280-81, 544 S.E.2d 

866, 868 (2001) (quoting McGee v. Commonwealth, 25 Va. App. 193, 

197, 487 S.E.2d 259, 261 (1997) (en banc)). 

 We find no error in the trial court's determination that 

Alston failed to invoke his Fifth Amendment right to counsel for 

the March 22 charges. Thus, his request for counsel at 

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arraignment for those charges would have fallen within the 

constitutional protection afforded by the Sixth Amendment.1 

 The Sixth Amendment right to counsel is "offense specific." 

See Texas v. Cobb, 121 S. Ct. 1335 (2001). Therefore, "'[i]t 

cannot be invoked once for all future prosecutions, for it does 

not attach until a prosecution is commenced, that is, at or 

after the initiation of adversary judicial criminal proceedings 

— whether by way of formal charge, preliminary hearing, 

indictment, information, or arraignment.'" Id. at 1340 (quoting 

McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). 

 Although it is true that "when the Sixth Amendment right to 

counsel attaches, it does encompass offenses that, even if not 

formally charged, would be considered the same offense under the 

Blockburger test," there was no evidence to suggest that 

Alston's burglary of the Tidewater Feed and Seed Store on 

February 12, 2000 was a result of the "same act or transaction" 

as his later burglary of the One Stop Pet Shop on March 22, 

2000. Id. at 1343; see also Blockburger v. United States, 284 

U.S. 299, 304 (1932). Accordingly, the protection afforded 

Alston by the Sixth Amendment extended only to the charges and 

proceedings concerning the March 22 burglary, and did not extend 

to bar police from properly questioning him concerning the 

unrelated matter of the February burglary of the Tidewater 

 1

 Indeed, on appeal, Alston does not maintain that his Fifth 

Amendment rights were violated. 

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Feed and Seed Store. Thus, we affirm the decision of the trial 

court. 

Affirmed. 

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