COURT OF APPEALS OF VIRGINIA

Present: Judges Kels ey, Haley and Beales Argued at Chesapeake, Virginia

EDDLON DON KNOX, III OPINION BY v. Record No. 0955-07-1 J UDGE RANDOLPH A. BEALES JULY 22, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Patricia L. West, Judge George H. Yates (Kristine C. Spicker; George Holton Yates & Associates, on brief), for appellant. Donald E. Jeffrey, III, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Eddlon Don Knox, III (appellant) entered c onditional guilty pleas to the following offenses: first-degree murder, in violation of Code § 18.2-32; attempted robbery, in violation of Code §§ 18.2-58 and 18.2-26; conspiracy to co mmit robbery, in violation of Code §§ 18.2-58 and 18.2-22; and, use of a firearm in the comm ission of a felony, in violation of Code § 18.2-53.1. On appeal, appellant argues that th e trial court erred in denying his motion to suppress statements made during an interview wi th police. For the reasons that follow, we

affirm.

I. B ACKGROUND The facts underlying appellant’s motion to s uppress are not in dispute. On April 24, 2006, appellant was arrested by Virginia Beach police officers pursuant to a warrant charging him with conspiracy to commit r obbery. Later that day, Detectives Seabold and Pickell, both of the Virginia Beach police department, interviewed appellant about his involvement in the crimes- 2 - to which he later entered conditional guilty pleas . The interview was videotaped, and a summary

of the interview was introduced as an exhibi t at the hearing on the motion to suppress. Prior to questioning, De tective Seabold advised appellant of his Miranda rights. Appellant acknowledged that he understood the rights Seabold read to him. After “Seabold advised Knox that he was going to ask him ques tions about that day and the people who were involved,” appellant said, “I don’ t even want to talk right no w. Not right now.” Seabold immediately stopped his in terrogation of appellant. Detective Pickell, who had remained silent until that point, asked appellant if he would like something to drink. Appellant responded, “I’m all right,” but then appellant asked Pickell, “Can we just talk later?” Pickell explained to ap pellant that “there might not be a later,” as two of appellant’s alleged co-conspirators had been ar rested and had given statements to the police. Pickell continued by saying he had the feeling that appellant was not part of that group and that he should give the police his side of the stor y. Thereafter, appellant made incriminating statements that admitted his involvement in a felony murder. The trial court denied appellant’s motion to suppress, concluding that “without reaching whether or not the defendant initially invoked his ri ght to remain silent – because I don’t have to reach that particular issue – it is clear to me that once the defendant reinitiated the conversation, that he waived that right.” The court opined, “The incriminat ing statements flowed from a conversation initiated by the defendant. He asked the detective if they could talk later. The detective answered the question, and then the incriminating st atements flowed from that

conversation.” The trial court accepted appellant’s conditional guilty pleas on the charges of first-degree murder, attempted robbery, conspiracy to co mmit robbery, and use of a firearm in the- 3 - commission of a felony. The court sentenced ap pellant to eighty-three years in jail, with thirty-three years suspended (for a total active se ntence of fifty years). This appeal followed.

II. A NALYSIS “On appeal from a denial of a motion to suppress, the burden is upon the defendant to show the trial judge’s ruling, when the evidence is viewed most favorably to the Commonwealth,

constituted reversible error.” Green v. Commonwealth , 27 Va. App. 646, 652, 500 S.E.2d 835, 838 (1998). “[I]n conducting its inde pendent review, an appellate co urt must review the circuit court’s findings of historical fact only for clear error, and the appellat e court must give due weight to inferences drawn fr om those factual findings.” Commonwealth v. Redmond , 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002). However, “we review de novo the trial court’s application of defined lega l standards to the particular facts of a case.” Cary v. Commonwealth , 40 Va. App. 480, 486, 579 S.E.2d 691, 694 (2003). “For a confession given during custodia l interrogation to be admissible, the Commonwealth must show that the accused was apprised of his right to remain silent and that he knowingly, intelligently, and volunt arily waived that right.” Green , 27 Va. App. at 652, 500

S.E.2d at 838.

[T]he Court [in Miranda ] held that an express statement can constitute a waiver, and that s ilence alone after such warnings cannot do so. But the Court did not hold that such an express statement is indispensable to a finding of waiver. An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably eith er necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda , mere silence is not enough. That does not mean that the defendant’s silence, coupl ed with an understanding of his- 4 - rights and a course of conduct indicating waiver, may never support a conclusion that a defe ndant has waived his rights.

North Carolina v. Butler , 441 U.S. 369, 373 (1979). “[T]he inquiry [of] whether a waiver of Miranda rights was made knowingly and intelligently is a question of fact, and the trial court’s resolution of that question is entitled on appeal to a presumption of correctness.” Harrison v. Commonwealth , 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992). [The trial court] evaluates the credibility of the witnesses, resolves any conflicts in the testimony, and weighs the evidence as a whole. The court must decide whethe r the defendant knowingly and intelligently relinquished and abandoned his rights. The court’s determination is a question of fact based upon the totality of the circumstances. This factual finding will not be disturbed on appeal unless plainly wrong.

Id. (quoting Watkins v. Commonwealth , 229 Va. 469, 477, 331 S.E.2d 422, 429-30 (1985)).

A. I NVOCATION OF THE RIGHT TO REMAIN SILENT

“ Miranda [ v. Arizona , 384 U.S. 436 (1966),] recognized that if a suspect ‘indicates in any manner, at any time prior to or during questio ning, that he wishes to remain silent, the interrogation must cease.’” Midkiff v. Commonwealth , 250 Va. 262, 267, 462 S.E.2d 112, 115 (1995) (quoting Miranda , 384 U.S. at 473-74). However, “a clear and unambiguous assertion of the right to remain silent or to counsel is necessary before aut horities are required to discontinue an interrogation.” Green , 27 Va. App. at 653, 500 S.E.2d at 838. “But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer

has been made available or the suspect himself reinitiates conversation .” Davis v. United States , 512 U.S. 452, 458 (1994) (emphasis added). See also Oregon v. Bradshaw , 462 U.S. 1039, 1043 (1983) (forbidding further interrogation “‘unless the accused himself initiates further communication, exchanges, or conversat ions with the police.’” (quoting Edwards v. Arizona , 451 U.S. 477, 485 (1981))); Green , 27 Va. App. at 653-54, 500 S.E.2d at 838-39 (finding- 5 - appellant, after “initially invok[i ng] his right to silence,” “volun tarily expressed his desire to make further statements”) (citing Davis , 512 U.S. at 462). 1 Here, in response to Detective Seabold’s expres sed desire to talk with appellant “about that day and the people who were involved,” appella nt stated, “I don’t even want to talk right now. Not right now.” The trial court assumed without deciding that appellant’s statement was sufficient to assert his right to remain silent. We likewise assume without deciding that appellant invoked his right to remain silent and turn, as the trial court did, to the question of whether or not appellant waived his right to remain silent by reinitiating a conversation with police. Before turning to that question, however , we note that Detective Seabold honored appellant’s right to remain sile nt by stopping the interrogation. See Medley v. Commonwealth , 44 Va. App. 19, 37, 602 S.E.2d 411, 419 (2004) ( en banc ) (“‘the admissibility of statements obtained after [a] person in custody has d ecided to remain silent depends under Miranda on whether his “right to cut off questioni ng” was “scrupulously honored.’”” (quoting Michigan v. Mosley , 423 U.S. 96, 102 (1975))). As the Un ited States Supreme Court held in Mosley , Through the exercise of his option to terminate questioning [a suspect] can control the time at which questioning occurs, the

1 The analysis performed in cases involving th e right to remain silent and the right to counsel differs when the police reinitiate a conversation with a suspect who has invoked either right, but remains the same if the suspect reinitia tes. If a suspect reinitiates the conversation, Bradshaw governs that point irrespective of whether the suspect initially invoked the right to counsel or the right to remain silent. See Christopher v. Florida , 824 F.2d 836, 844-45 (11th Cir. 1987) (“While we recognize that Edwards and Bradshaw are right to counsel cases, and that [ Michigan v.] Mosley [, 423 U.S. 96 (1975),] governs the admissibility of statements made following the suspect’s invocation of his right to cut off questioning, Mosley , 423 U.S. at 104, 96 S. Ct. at 326, we accept the State’ s implicit claim that there are si tuations where the ‘initiation’ test of Edwards / Bradshaw governs the admissibility of statem ents made after a suspect has invoked his right to terminate questioning,” and, thus, “the Edwards / Bradshaw rule merges with the test of Mosley to render inadmissible statements obt ained during a ‘signifi cant period’ after a request to cut off questioning, unless the statements were the pr oduct of a conversation initiated by the suspect under the test of Edwards / Bradshaw .” (emphasis added)). See also United States v. Thongsophaporn , 503 F.3d 51, 56-57 (1st Cir. 2007) (applying Bradshaw reinitiation test following an invocation of the right to remain silent under Mosley ).- 6 - subjects discussed, and the durat ion of the interrogation. The requirement that law enforcemen t authorities must respect a person’s exercise of that option c ounteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtaine d after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.” 423 U.S. at 104-05. Here, Seabold immediately terminated questioning after appellant informed him that he did not want to talk “right now .” In so doing, Detective Seabold respected appellant’s “exercise of that opt ion” and, therefore, “scrupulous ly honored” appellant’s right to

remain silent. Id. 2

B. R EINITIATION OF THE CONVERSATION WITH POLICE “If ‘the accused, not the police, [reopens] th e dialogue with the aut horities,’ a court, upon

consideration of that fact and ‘the totality of the circumstances,’ may reasonably find that the accused has made a ‘knowing and intell igent’ waiver of his rights.” Harrison , 244 Va. at 583, 423 S.E.2d at 164 (quoting Edwards , 451 U.S. at 486 n.9). The dialogue initiated by the accused must demonstrate “a willingness and a desire for a generalized discussion about the investigation.” Bradshaw , 462 U.S. at 1045. If it is f ound that the accused reinitiated a conversation, the next inquiry [is] “whether a va lid waiver of the right to counsel and the right to silence had occurr ed, that is, whether the purported waiver was knowing and intelligen t and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.”

Id. at 1046 (quoting Edwards , 451 U.S. at 486 n. 9).

2 The fact that Seabold honored appellant’s assumed invocation of his right to remain silent distinguishes this cas e from our recent opinion in Ferguson v. Commonwealth , __ Va. App. __, __ S.E.2d __ (July 22, 2008) ( en banc ). There, we held that a police investigator, by continuing to interrogate Ferguson after he asserted his right to counsel, did not honor Ferguson’s request. Thus, the failure to honor Ferguson’s request “tai nted any subsequent confession made by [Ferguson] while he remained in the continuous custody of police officers.” Id. at ___, ___ S.E.2d at ___.- 7 - In Bradshaw , after invoking his Fifth Amendment ri ght to counsel, th e defendant asked police, “Well, what is going to happen to me now ?” The plurality opinion of the United States Supreme Court held, Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussi on about the investigation; it was not merely a necessary inquiry aris ing out of the incidents of the custodial relationship. It could re asonably have been interpreted by the officer as relating genera lly to the investigation.

462 U.S. at 1046. 3 However, according to the Court’s plurality opinion, some routine questions, asked either by police or by the accused while in custody, do not reinitiate a conversation: There are some inquiries, such as a request for a drink of water or a request to use a telephone, that ar e so routine that they cannot be fairly said to represen t a desire on the part of an accused to open up a more generalized discussion relatin g directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer , relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards

. 462 U.S. at 1045 (emphasis added). Here, after Seabold stopped interrogating a ppellant, Detective Pickell, who had not previously asked appellant any questions, asked appellant whether he would like something to drink. That was the only thing the police asked appellant af ter he said, “I don’t even want to talk right now. Not right now.” As Bradshaw makes clear, and as the tr ial court correctly found, the

3 The four members of th e Court who dissented in Bradshaw agreed with the plurality opinion that, “in order to cons titute ‘initiation’ under Edwards , an accused’s inquiry must demonstrate a desire to discuss the subject matte r of the criminal inves tigation.” 462 U.S. at 1055. The dissenting judges, however, differed with the plurality’s applica tion of that principle to the facts of that case. Justice Powell, who concurred in the judgment “that Bradshaw knowingly and intelligently waived his right to counsel,” did not agree, however, with the two-step analysis that the other justices in the plurality opinion employed to decide the case. Instead, Justice Powell believed “t he question of whether a suspect has waived this important right to counsel is uniquely one of fact, and usually must and shoul d be left to the judgment of the trial court that has had the benefit of hear ing the evidence and assessing the weight and credibility of testimony.” 462 U.S. at 1051.- 8 - question Pickell asked appellant – “would you like something to drink?” – did not reinitiate an interrogation of appellant. Howeve r, appellant, after declining Pi ckell’s offer of something to drink, asked Detective Pickell a specific question -- “Can we just talk later?” 4 Pickell answered appellant’s question by explaining that “there might not be a la ter” since two of appellant’s co-conspirators had given statemen ts to the police and that now was the opportunity for appellant to tell his side of the story. 5 Appellant then chose to continue his conversation with the police,

and in the course of that c onversation, appellant admitted his involvement in a robbery and a murder. The trial court, therefore, found that the incriminating statements appellant made “flowed from a conversation [appellant] initiated.” 6

4 Appellant argues that to deci de this issue, we must cons ider the question he posed to Detective Pickell in the context of the statement he previously made to Detective Seabold. We note, however, that the United States Supreme Court in Smith v. Illinois , 469 U.S. 91 (1994), suggested otherwise: Where nothing about the request [to remain silent] or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, a nd the two must not be blurred by merging them together.

469 U.S. at 98.

5 Of course, the police generally have no obligation to talk to an accused at any time.

6 In his brief, appellant argues that “upon any re-initiation [the polic e] must again advise [appellant] of his rights.” (Emphasis added.) We disagree and believe instead “that once a defendant has been fully and fairly appraised of his rights, there is no requirement that the warnings be repeated each time the questioning is commenced.” State v. Miller , 522 P.2d 23, 24 (Ariz. 1974). See also Gorman v. United States , 380 F.2d 158, 164 (1st Cir. 1967) (“[A]dvocacy of an automatic second-warning system misunde rstands and downgrades the warnings required by Miranda . Their purpose was not to add a perfunctory ritual to police pro cedures but to be a set of procedural safeguards ‘to inform accused pe rsons of their right of silence and to assure a continuous opportunity to exercise it.’” (quoting Miranda , 384 U.S. at 444)); State v. Castaneda , 724 P.2d 1, 6 (Ariz. 1984) (rejecting the defendant’s assertion that he mu st be re-Mirandized after a reinitiation).- 9 - Like Bradshaw’s question to police (“Well, what is going to happen to me now?”), appellant’s question to Pickell -- “Can we just talk later?” -- related generally to the pending investigation and not to “the in cidents of the custodial relations hip,” as might “a request for a drink of water or a request to use a telephone.” Bradshaw , 462 U.S. at 1046. See Harrison , 244 Va. at 582-83, 423 S.E.2d at 164 (Assuming Harrison’s “silence following his acknowledgement

that he understood his Miranda rights was an implicit invocat ion of those rights,” “Harrison reopened the dialogue by inquiring ‘wha t was going to happen to him.’”). See also United States v. Velasquez , 885 F.2d 1076, 1085 (3d Cir. 1989) (“By asking the question [‘What is going to happen?’], Velasquez initiated the conversation. While the question itself may not be free of all ambiguity, its context supports the conclusion that it was directed toward the investigation.”). We hold, therefore, that, since appellant’s questio n to Detective Pickell related generally to the investigation and was not merely in cidental to the custodial relationship, the trial court correctly decided that appellant reinitiated the conversation with police. Because appellant reinitiated the conversati on with police and appe llant’s incriminating

statements flowed from the conversation that followed from the quest ion appellant posed to Detective Pickell, the trial c ourt properly found that appella nt knowingly and intelligently waived his right to remain silent. As the trial court astutely noted, while appellant may not have liked the answer Detective Pickell gave him to the question appellant asked, he nevertheless chose at that point to continue the conversation he had initiated w ith Detective Pickell and, in the process, made statements admitting his involvement in the crimes to which he ultimately pled guilty. Therefore, taking into account the totali ty of the circumstances, we hold that the trial

Here, approximately two minutes passed betw een Detective Seabol d’s reading of the Miranda warnings to appellant and appellant’s reinitiation of a conversation with Detective Pickell. Given that extremely short duration of time, Pickell was not required to read the Miranda warnings to appellant again.- 10 - court was not plainly wrong in de termining that appellant waived his right to remain silent. Consequently, the trial court did not err in denying appellant’s motion to suppress.

III. C ONCLUSION For the foregoing reasons, we affirm the tria l court’s denial of appellant’s motion to suppress. We likewise affirm those convictions to which appe llant entered conditional guilty pleas.

Affirmed.