Commonwealth of Virginia v. Dylan Lopez Tyree ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2484-00-2 JUDGE RICHARD S. BRAY
APRIL 17, 2001
DYLAN LOPEZ TYREE
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Denise Y. Lunsford; Kelly A. Hobbs (George H.
Dygert & Associates, on brief), for appellee.
Dylan Lopez Tyree (defendant) was indicted in the trial court
for first degree murder, robbery, burglary and related use of a
firearm, violations of Code §§ 18.2-32, -58, -91 and -53.1,
respectively. Alleging violations of his constitutional right to
remain silent, defendant successfully moved the court to suppress
his post-arrest statements to police. The Commonwealth appeals to
this Court pursuant to Code § 19.2-398, maintaining defendant did
not properly assert his right to silence, but, even so, police
committed no violation. We disagree and affirm the order.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
On appeal of a ruling on a motion to suppress evidence, we
consider the evidence in the light most favorable to the
prevailing party below, defendant in this instance, together
with all reasonable inferences fairly deducible from such
evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991). The burden is upon the Commonwealth
"to show the trial judge's ruling . . . constituted reversible
error." Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d
835, 838 (1998).
Defendant was arrested for the subject offenses by Albemarle
County police at 9:30 a.m. on October 8, 1998. Shortly
thereafter, county Detectives Hanover and Henshaw advised
defendant of his Miranda rights, and he agreed to speak with
police. During the ensuing interview, which spanned "fifteen,
maybe twenty minutes," defendant "just talked," without indicating
"any concern or being angered or despondent or anything," and
denied involvement in the offenses. However, when Detective
Hanover questioned his whereabouts at the time of the crimes,
defendant became "agitated" and responded, "I'm not saying shit to
you. I wasn't involved in any of that. I don't know what you're
talking about." As a result, Hanover concluded "the interview
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wasn't progressing anywhere," Henshaw understood defendant "didn't
have anything else to say," and the two "decided to stop the
interview."
Shortly thereafter, at approximately 11:00 a.m., defendant
was transported to Charlottesville police headquarters and
immediately served with a warrant charging a grand larceny in that
jurisdiction. At 12:22 p.m., Charlottesville Police Sergeant
Hudson advised defendant of his Miranda rights, and, again, he
agreed to an interview. At the outset of interrogation, Hudson
reminded defendant, "You've been charged with some burglaries in
[Charlottesville] and you've been charged with homicide in
[Albemarle] [C]ounty," adding "[p]art of the opportunity you have
here is to tell us about that." Hudson cautioned defendant,
"you're in a real serious jam" and "now is the time to get [the
murder] straightened out." After defendant had responded to
numerous inquiries pertaining to the Albemarle County homicide,
repeatedly denying involvement despite Hudson's accusations to the
contrary, he declared, "I don't want to talk to you no more. . . .
I ain't no damn murderer" and concluded the interview.
Prior to trial on the instant offenses, defendant moved to
suppress his statements to Sergeant Hudson, contending they were
unconstitutionally obtained following invocation of his right to
remain silent. Following a related hearing, the court granted the
motion, finding defendant had
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invoke[d] his right to remain silent at the
conclusion of the interview with the county
detective . . . . The county police did
recognize the defendant's wish to not talk.
This [c]ourt finds that the police did not
"scrupulously honor" the right to remain
silent as [Sergeant] Hudson told the
defendant that he wished to ask him about
the county murder after the defendant had
told county police he had nothing to say,
which the county police had honored. The
second interrogation was not limited to
questions about crimes other than the murder
charge. Accordingly, this [c]ourt finds
that . . . any statement obtained by
Detective Hudson on October 8, 1998 at
12:22 p.m. and thereafter is suppressed.
The Commonwealth appeals.
II.
The Commonwealth first contends defendant's comment to the
Albemarle County detectives, "I'm not saying shit . . .," "did
not constitute an unambiguous or clear" assertion of the right
to remain silent.
"For a confession given during custodial 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 voluntarily waived that right." Green, 27
Va. App. at 652, 500 S.E.2d at 838. Once an accused waives the
right to silence, such waiver "'will be presumed to continue
. . . until the suspect manifests . . . his desire to revoke
it.'" Id. (citation omitted). However, "[t]he Virginia Supreme
Court has declared that a clear and unambiguous assertion of the
right to remain silent . . . is necessary before authorities are
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required to discontinue an interrogation." Id. The test to
ascertain if a suspect invoked the right to silence is an
objective one, Davis v. United States, 512 U.S. 452, 459 (1994),
and the attendant finding by the trial court is "a factual
determination that will not be disturbed on appeal unless
clearly erroneous." Mills v. Commonwealth, 14 Va. App. 459,
468, 418 S.E.2d 718, 723 (1992) (citations omitted); see also
Green, 27 Va. App. at 651-54, 500 S.E.2d at 838-39 (trial court
not "plainly wrong" in finding no clear and unambiguous
assertion of right to remain silent).
Here, defendant abruptly and pointedly informed the
Albemarle detectives, "I'm not saying shit to you," and said no
more. His message was clearly understood by police and resulted
in immediate termination of the interview by police. Under such
circumstances, the trial court found, as a matter of fact, that
defendant clearly and unambiguously asserted his right to remain
silent, a conclusion supported by the record and not plainly
wrong.
The Commonwealth's reliance upon Mitchell v. Commonwealth,
30 Va. App. 520, 518 S.E.2d 330 (1999), and Green for a
different result is misplaced. In Mitchell, the accused, after
stating, "I ain't got shit to say to y'all," "proceeded to
volunteer information" to police. Id. at 527, 518 S.E.2d at
334. The accused in Green told investigators "he didn't have
anything more to say . . . [and] if [the detective] thought that
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he wanted to confess to some things he didn't do, that [the
detective] might as well buckle up for the long ride," language
clearly dissimilar from the instant record. 27 Va. App. at 651,
500 S.E.2d at 837.
III.
When an accused clearly and unambiguously asserts the right
to remain silent, police must cease interrogation. Miranda v.
Arizona, 384 U.S. 436, 473-74 (1966). "[T]he admissibility of
statements obtained after the person in custody has decided to
remain silent depends under Miranda on whether his 'right to cut
off questioning' was 'scrupulously honored.'" Michigan v.
Mosley, 423 U.S. 96, 104 (1975) (citation omitted) (emphasis
added); Weeks v. Commonwealth, 248 Va. 460, 470, 450 S.E.2d 379,
386 (1994). "Whether a person's decision to remain silent has
been 'scrupulously honored' requires an independent examination
of the circumstances." Pugliese v. Commonwealth, 16 Va. App.
82, 88, 428 S.E.2d 16, 21 (1993). However, "[i]n making this
determination, an appeals court is bound by the trial court's
subsidiary factual findings unless those findings are plainly
wrong." Wilson v. Commonwealth, 13 Va. App. 549, 551, 413
S.E.2d 655, 656 (1992).
In Weeks, the Virginia Supreme Court adopted the "case by
case approach to determine [if] continued questioning was
appropriate after an initial refusal to answer questions"
suggested by the United States Supreme Court in Mosley. Weeks,
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248 Va. at 471, 450 S.E.2d at 386. The Court further approved
and applied the five inquiries mentioned in Mosley as pertinent
to a resolution of the issue. Id.
First, whether defendant "was carefully
advised" before the initial interrogation
"that he was under no obligation to answer
any questions and could remain silent if he
wished." Second, whether there was an
immediate cessation of the initial
interrogation, and no attempt to persuade
defendant to reconsider his position.
Third, whether the police resumed
questioning "only after the passage of a
significant period of time." Fourth,
whether Miranda warnings preceded the second
questioning. Fifth, whether the second
interrogation was limited to a crime that
had not been the subject of the earlier
interrogation.
Id. (internal citations omitted).
Here, it is undisputed that defendant was properly advised
of his Miranda rights prior to the initial interview in
Albemarle County and voluntarily executed a related waiver.
However, after briefly discussing the crimes with police,
defendant clearly and unambiguously asserted his right to remain
silent, a decision immediately respected by the Albemarle County
detectives. Approximately two and one-half hours thereafter,
defendant was transported to Charlottesville, charged with other
offenses, once more advised of his Miranda rights and again
submitted to police interrogation.
At the inception of the second interview, Charlottesville
Police Sergeant Hudson emphasized the Albemarle County homicide,
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the seriousness of the crime, the attendant "jam" confronting
defendant and the need to truthfully address the charge. The
subsequent questioning repeatedly focused on the murder and
related events, circumstances clearly the subject of defendant's
prior assertion of his right to silence. The trial court
concluded such conduct violated defendant's constitutional right
to remain silent and the related lessons of Miranda. Applying
the inquiries appropriate to a Weeks and Mosley analysis to the
instant facts, our independent examination of the record
confirms that Charlottesville police did not properly honor
defendant's rights by resuming interrogation with respect to an
offense then subject to his right to silence exercised only
three hours previously.
Accordingly, we affirm the disputed order and remand to the
trial court for such further proceedings as deemed appropriate.
Affirmed and remanded.
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