Dennis R. Barker, s/k/a Dennis R. Barker, Jr. v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
DENNIS RAY BARKER, S/K/A
DENNIS RAY BARKER, JR.
MEMORANDUM OPINION *
v. Record No. 0078-97-2 BY JUDGE MARVIN F. COLE
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
L. Willis Robertson, Jr. (Cosby and
Robertson, on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Dennis Ray Barker, Jr., appellant, moved to suppress certain
statements he made to a sheriff's investigator after being taken
into custody. The investigator read appellant his Miranda rights
before arresting him, but did not re-read him his rights before
questioning him later at the sheriff's office. After the trial
court denied the suppression motion, appellant entered
conditional guilty pleas to four counts of larceny. We affirm.
The Hanover County Sheriff's Department suspected appellant
and another person, Christopher Hall, of stealing several
motorcycles. Investigator Mark Hottle, in the course of his
investigation into the thefts, went to appellant's home.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Arriving there, he found appellant in the yard and questioned him
in reference to reports of several motorcycles stolen in the
county. At first, appellant denied any knowledge of the thefts,
but eventually admitted stealing a motorcycle. Appellant's
father approached at that time and stated that someone else was
in the house that the investigator needed to speak with.
Bringing appellant with him, Hottle entered the house where he
found Hall. He read both appellant and Hall their Miranda rights
from a preprinted card issued by the sheriff's office. Appellant
indicated that he understood the rights.
Hottle interrogated Hall separately. After talking to Hall,
he placed both appellant and Hall under arrest. Both men were
taken to the sheriff's office, where appellant was questioned by
Hottle without being re-advised of his Miranda rights. Thirty to
forty-five minutes elapsed between the time appellant was read
his rights at his home and the time he was questioned at the
sheriff's office.
At the suppression hearing, appellant moved to suppress his
statement made to Hottle at the sheriff's office due to the fact
that he was not re-advised of his rights after his arrest and
prior to being questioned again. The trial court overruled the
motion to suppress.
The purpose of Miranda warnings is to ensure that
a suspect knows that he may choose not to
talk to law enforcement officials, to talk
only with counsel present, or to discontinue
talking at any time. The Miranda warnings
ensure that a waiver of these rights is
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knowing and intelligent by requiring that the
suspect be fully advised of this
constitutional privilege, including the
critical advice that whatever he chooses to
say may be used as evidence against him.
Colorado v. Spring, 479 U.S. 564, 574 (1987). See also Shell v.
Commonwealth, 11 Va. App. 247, 252, 397 S.E.2d 673, 676 (1990).
"Miranda warnings are required whenever a suspect is subjected to
'custodial interrogation.'" Cherry v. Commonwealth, 14 Va. App.
135, 140, 415 S.E.2d 242, 244 (1992) (citation omitted).
In reviewing a trial court's denial of a motion to suppress,
"[t]he burden is upon [the appellant] to show that this ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980).
Appellant does not contend that he was unaware of his
constitutional rights guaranteed by Miranda. He admits that the
Miranda rights were read to him prior to his arrest. He stated
to the investigator that he understood them. He at no time
asserted his right to remain silent. He argues that, as a matter
of law, a suspect who has been given his Miranda warnings prior
to being taken into custody, must be re-advised after he is taken
into custody, even when the custodial questioning begins within a
short period of time after the warnings are given. We disagree.
We find that this case is controlled by principles set forth
in Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990). The
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Supreme Court held:
"[W]here a person, after receiving Miranda
warnings, has once given a knowing and
intelligent waiver of his constitutional
rights, such waiver will be presumed to
continue in effect throughout subsequent
custodial interrogations until the suspect
manifests, in some way which would be
apparent to a reasonable person, his desire
to revoke it."
Id. at 35, 393 S.E.2d at 604 (quoting Washington v. Commonwealth,
228 Va. 535, 548-49, 323 S.E.2d 577, 586 (1984), cert. denied,
471 U.S. 1111 (1985)). In Cheng, the Court further held that
after the defendant was advised of his Miranda rights, his
decision to converse with the officer constituted an implied
waiver of his Miranda rights and that an express written or oral
waiver of rights was not required.
In this case, appellant's decision to talk to Hottle after
having been read the Miranda rights, constituted an implied
waiver of those rights. Such is presumed to continue in effect
throughout subsequent custodial interrogations until the accused
manifests his desire to revoke it. Appellant never manifested a
desire to revoke the waiver at any time thereafter. We conclude
from the record that appellant's statement to Hottle made at the
sheriff's office was made freely and with full knowledge of his
Miranda rights. Accordingly, we affirm the decision of the trial
court.
Affirmed.
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