COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker and Willis 

Argued at Norfolk, Virginia 

KENYATTA FERREL CHRISTIAN 

v. Record No. 0707-94-1 MEMORANDUM OPINION* 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA JUNE 6, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 John R. Doyle, III, for appellant. 

 Donald R. Curry, Senior Assistant Attorney General 

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

 for appellee. 

 Kenyatta Ferrel Christian (appellant) appeals from his bench 

trial conviction by the Circuit Court of the City of Norfolk for 

robbery and use of a firearm in the commission of that felony. 

At trial and in his brief before this Court, appellant contended 

that the trial court, in violation of the Fifth and Fourteenth 

Amendments to the Constitution of the United States, erroneously 

permitted the prosecutor to cross-examine appellant concerning 

his failure to inform the police of his alibi following his 

arrest. 

 In support of his conviction, the Commonwealth presented the 

following evidence: At approximately 6:50 a.m. on July 12, 1993, 

the victim was stopped in his car in the drive-in lane of a 

Burger King restaurant when appellant approached him exhibiting a 

____________________ 

 *Pursuant to Code § 17-116.010, this opinion is not 
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designated for publication. 

gun. When appellant demanded entry to the car, the victim got 

out. Appellant then entered the car and drove it away. Later 

that same day, an employee of the victim observed appellant in 

possession of the victim's car and reported the sighting to the 

police. Shortly thereafter, a policeman saw appellant driving 

the car and gave chase. The chase ended when appellant abandoned 

the car and entered a nearby garage. The policeman followed 

appellant, caught up with and arrested him. 

 The record is silent as to whether appellant was advised of 

his Miranda rights. There was no evidence that appellant said 

anything to the police except that he later conversed with one of 

the detectives to some extent. 

 At trial, appellant testified on his own behalf. He stated 

that on the morning of the robbery he had not been at the Burger 

King, that he had slept-in until 9:00 a.m., and then had gone to 

look for work in the area where he was subsequently arrested. 

When the prosecutor, on cross-examination, asked appellant why 

did he not inform the police of his alibis when he was arrested, 

appellant's objections were sustained. However, over appellant's 

objection, the trial court permitted the prosecutor to ask the 

following questions: 

Did you ever mention to the police anything 

about the Omni? 

Did you ever mention to them being at 

Waterside? 

About the fudgery? 
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About any of the other people you talked to? 

Did you ever mention to the police that you 

were at your mother's house until 9:00 that 

morning, asleep? 

 Appellant concedes that we must presume that no Miranda1

warnings were given. Thus, appellant's election to not give the 

police information concerning his alibis was made on his own, 

without the assurance of Miranda. 

 In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court 

held that when the accused remained silent after having been 

warned of his Miranda rights, thereafter, if the accused elects 

to testify on his behalf, the prosecutor may not inquire why at 

the time of his arrest he did not give the police the information 

he revealed in his defense at trial. However, in a line of 

subsequent United States Supreme Court cases, the Doyle decision 

was limited to cases in which the accused was informed of his 

right to remain silent. See Brecht v. Abrahamson, 113 S. Ct. 

1710 (1993); Fletcher v. Weir, 455 U.S. 603 (1982); Jenkins v. 

Anderson, 447 U.S. 231 (1980)2; In Abrahamson, the Court said: 

The "implicit assurance" upon which we have 

relied in our Doyle line of cases is the 

right-to-remain-silent component of Miranda. 

 Thus, the Constitution does not prohibit the 

use for impeachment purposes of a defendant's 

silence prior to arrest, or after arrest if 

no Miranda warnings are given. Such silence 

 

 1Miranda v. Arizona, 384 U.S. 436 (1966). 

 2In Jenkins, the Supreme Court held that when an accused elects 

to testify after remaining silent at the time of his arrest, he 

waives his Fifth Amendment privileges. 
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is probative and does not rest on any implied 

assurance by law enforcement authorities that 

it will carry no penalty. 

Abrahamson, at 1716. 

 In accord with Weir and Abrahamson, because the record does 

not show that appellant remained silent at the time of this 

arrest after being warned of his rights, we hold that the trial 

court did not err in permitting the objected to questions. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.