COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner Argued at Richmond, Virginia
BRIAN JENNINGS HALE MEMORANDUM OPINION∗ BY v. Record No. 2382-04-4 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 25, 2005 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY John R. Cullen, Judge
M. Andrew Gayheart (Gayheart & Willis, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.
Brian Hale (appellant) appeals his conviction of rape in violation of Code § 18.2-61(A).
Appellant contends that the trial court erred by denying his motion to suppress statements he
made to police after invoking his right to remain silent. Because we hold that appellant did not
manifest an unequivocal invocation of his right to remain silent, we affirm.
I. BACKGROUND
At approximately 1:00 a.m. on January 11, 2004, Investigator James Mack of the
Culpeper Sheriff’s Office came to appellant’s home and asked if appellant would come to his
office. Appellant agreed and stated “[S]ure, no problem.” At the sheriff’s office, appellant was
taken to an interview room and read the Miranda warnings. Appellant acknowledged that he was
willing to speak and that he understood his rights. During the questioning, appellant had no
difficulty in understanding Investigator Mack, nor did he appear confused in any way.
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. Investigator Mack questioned appellant about a sexual encounter between appellant and
the complainant. After a number of introductory questions, appellant began talking about an
argument that he had with her and then remarked, “that’s probably really all I can say.”
Investigator Mack continued to question appellant about the argument, and started to talk about
physical violence. Appellant acknowledged they became physical after they both “snapped.” At
that point, Investigator Mack asked appellant, “can you tell me about that?” to which appellant
replied “I’d rather not.” The interview continued, and appellant made several incriminating
admissions.
Appellant was indicted on a single count of rape in violation of Code § 18.2-61(A). Prior
to trial, appellant filed a motion to suppress statements made during the police interview. The
trial court heard evidence and argument on the motion to suppress. After reviewing the written
and recorded statements of appellant, the trial court found that “based on the evidence,” “the
defendant did not make a clear and unambiguous assertion of his right to remain silent after he
first waived his Miranda rights.” The trial court explained: “the two statements pointed out by
defense counsel would not make it apparent to a reasonable person of the defendant’s desire to
revoke his waiver of his right to remain silent.” The trial court found that the first statement was
simply a continuation of appellant’s train of thought and the second statement was made in
response to the officer’s direct question, and merely indicated that appellant “wanted to proceed
in another way.” The trial court found that neither clearly stated that he wished to terminate the
interview. After a bench trial, at which the statements sought to be suppressed were introduced,
appellant was convicted of rape.
-2- II. ANALYSIS
Appellant argues that the trial court erred in denying his motion to suppress because
appellant’s statements indicated that he wished to exercise his right to remain silent and
terminate the interview. We disagree.
The issue of whether appellant clearly manifested an intention to remain silent during a
custodial interrogation is a mixed question of law and fact, calling for “‘the application of a
constitutional standard to the facts of a particular case, and in this context de novo review of that
question is appropriate.’” Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d 695,
697-98 (2002) (quoting United States v. Bajakajian, 524 U.S. 321, 336-37 n.10 (1998)).
Therefore, the determination of what appellant actually said is “‘a question of fact that we review
only for clear error,’” but whether the words are sufficient to invoke the right to remain silent is a
legal determination, reviewed de novo. Id. at 327, 568 S.E.2d at 698 (quoting United States v.
Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)). Additionally, on appeal from a denial of a
suppression motion, “we view the evidence in the light most favorable to the Commonwealth.”
Mitchell v. Commonwealth, 30 Va. App. 520, 526, 518 S.E.2d 330, 333 (1999).
Initially we note that there is no dispute that statements in the transcript and statements
considered by the trial court were a true reflection of what was stated during the interrogation.
The dispute is over the legal effect of the two statements: “[T]hat’s probably really all I can say”
and “I’d rather not” in response to Investigator Mack’s question, “[C]an you tell me about that?”
We are “required to uphold the circuit court’s determination unless the historical facts, as a
matter of law, did not support the circuit court’s conclusion” that appellant failed to invoke his
right to remain silent. Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d 579, 585 (2005)
(finding that an appellate court is limited to the issue of whether appellant’s words were legally
sufficient to invoke his rights and the court cannot conduct its own fact finding).
-3- Where police read Miranda warnings to a defendant and the defendant knowingly and intelligently waives his or her constitutional rights, we presume that the waiver remains in effect “until the suspect manifests, in some way which would be apparent to a reasonable person, his or her desire to revoke it.”
Mitchell, 30 Va. App. at 526-27, 518 S.E.2d at 333 (quoting Washington v. Commonwealth, 228
Va. 535, 548-49, 323 S.E.2d 577, 586 (1984)). Such a determination is a “purely objective
inquiry.” Hilliard, 270 Va. at 50, 613 S.E.2d at 584. It is only when an individual makes an
unambiguous assertion of his right to remain silent must officers terminate the interview.
Mitchell, 30 Va. App. at 527, 518 S.E.2d at 333. For example, “I don’t got nothing to say,”
United States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996), “I don’t think I should say
anything,” Burket v. Commonwealth, 248 Va. 596, 609-10, 450 S.E.2d 124, 131-32 (1994), “Do
I have to talk about it now?,” Akers v. Commonwealth, 216 Va. 40, 45-46, 216 S.E.2d 28, 31-32
(1975), “[I don’t] have anything more to say,” Green v. Commonwealth, 27 Va. App. 646,
652-54, 500 S.E.2d 835
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner Argued at Richmond, Virginia
BRIAN JENNINGS HALE MEMORANDUM OPINION∗ BY v. Record No. 2382-04-4 CHIEF JUDGE JOHANNA L. FITZPATRICK OCTOBER 25, 2005 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY John R. Cullen, Judge
M. Andrew Gayheart (Gayheart & Willis, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.
Brian Hale (appellant) appeals his conviction of rape in violation of Code § 18.2-61(A).
Appellant contends that the trial court erred by denying his motion to suppress statements he
made to police after invoking his right to remain silent. Because we hold that appellant did not
manifest an unequivocal invocation of his right to remain silent, we affirm.
I. BACKGROUND
At approximately 1:00 a.m. on January 11, 2004, Investigator James Mack of the
Culpeper Sheriff’s Office came to appellant’s home and asked if appellant would come to his
office. Appellant agreed and stated “[S]ure, no problem.” At the sheriff’s office, appellant was
taken to an interview room and read the Miranda warnings. Appellant acknowledged that he was
willing to speak and that he understood his rights. During the questioning, appellant had no
difficulty in understanding Investigator Mack, nor did he appear confused in any way.
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. Investigator Mack questioned appellant about a sexual encounter between appellant and
the complainant. After a number of introductory questions, appellant began talking about an
argument that he had with her and then remarked, “that’s probably really all I can say.”
Investigator Mack continued to question appellant about the argument, and started to talk about
physical violence. Appellant acknowledged they became physical after they both “snapped.” At
that point, Investigator Mack asked appellant, “can you tell me about that?” to which appellant
replied “I’d rather not.” The interview continued, and appellant made several incriminating
admissions.
Appellant was indicted on a single count of rape in violation of Code § 18.2-61(A). Prior
to trial, appellant filed a motion to suppress statements made during the police interview. The
trial court heard evidence and argument on the motion to suppress. After reviewing the written
and recorded statements of appellant, the trial court found that “based on the evidence,” “the
defendant did not make a clear and unambiguous assertion of his right to remain silent after he
first waived his Miranda rights.” The trial court explained: “the two statements pointed out by
defense counsel would not make it apparent to a reasonable person of the defendant’s desire to
revoke his waiver of his right to remain silent.” The trial court found that the first statement was
simply a continuation of appellant’s train of thought and the second statement was made in
response to the officer’s direct question, and merely indicated that appellant “wanted to proceed
in another way.” The trial court found that neither clearly stated that he wished to terminate the
interview. After a bench trial, at which the statements sought to be suppressed were introduced,
appellant was convicted of rape.
-2- II. ANALYSIS
Appellant argues that the trial court erred in denying his motion to suppress because
appellant’s statements indicated that he wished to exercise his right to remain silent and
terminate the interview. We disagree.
The issue of whether appellant clearly manifested an intention to remain silent during a
custodial interrogation is a mixed question of law and fact, calling for “‘the application of a
constitutional standard to the facts of a particular case, and in this context de novo review of that
question is appropriate.’” Commonwealth v. Redmond, 264 Va. 321, 326, 568 S.E.2d 695,
697-98 (2002) (quoting United States v. Bajakajian, 524 U.S. 321, 336-37 n.10 (1998)).
Therefore, the determination of what appellant actually said is “‘a question of fact that we review
only for clear error,’” but whether the words are sufficient to invoke the right to remain silent is a
legal determination, reviewed de novo. Id. at 327, 568 S.E.2d at 698 (quoting United States v.
Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)). Additionally, on appeal from a denial of a
suppression motion, “we view the evidence in the light most favorable to the Commonwealth.”
Mitchell v. Commonwealth, 30 Va. App. 520, 526, 518 S.E.2d 330, 333 (1999).
Initially we note that there is no dispute that statements in the transcript and statements
considered by the trial court were a true reflection of what was stated during the interrogation.
The dispute is over the legal effect of the two statements: “[T]hat’s probably really all I can say”
and “I’d rather not” in response to Investigator Mack’s question, “[C]an you tell me about that?”
We are “required to uphold the circuit court’s determination unless the historical facts, as a
matter of law, did not support the circuit court’s conclusion” that appellant failed to invoke his
right to remain silent. Commonwealth v. Hilliard, 270 Va. 42, 50, 613 S.E.2d 579, 585 (2005)
(finding that an appellate court is limited to the issue of whether appellant’s words were legally
sufficient to invoke his rights and the court cannot conduct its own fact finding).
-3- Where police read Miranda warnings to a defendant and the defendant knowingly and intelligently waives his or her constitutional rights, we presume that the waiver remains in effect “until the suspect manifests, in some way which would be apparent to a reasonable person, his or her desire to revoke it.”
Mitchell, 30 Va. App. at 526-27, 518 S.E.2d at 333 (quoting Washington v. Commonwealth, 228
Va. 535, 548-49, 323 S.E.2d 577, 586 (1984)). Such a determination is a “purely objective
inquiry.” Hilliard, 270 Va. at 50, 613 S.E.2d at 584. It is only when an individual makes an
unambiguous assertion of his right to remain silent must officers terminate the interview.
Mitchell, 30 Va. App. at 527, 518 S.E.2d at 333. For example, “I don’t got nothing to say,”
United States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996), “I don’t think I should say
anything,” Burket v. Commonwealth, 248 Va. 596, 609-10, 450 S.E.2d 124, 131-32 (1994), “Do
I have to talk about it now?,” Akers v. Commonwealth, 216 Va. 40, 45-46, 216 S.E.2d 28, 31-32
(1975), “[I don’t] have anything more to say,” Green v. Commonwealth, 27 Va. App. 646,
652-54, 500 S.E.2d 835, 838-39 (1998), and “I ain’t got shit to say to y’all, ” Mitchell, 30
Va. App. at 527, 518 S.E.2d at 333, have not been found to invoke the right to remain silent.
The ultimate question of whether there was a clear revocation of the earlier waiver is one to be
decided according to the totality of the circumstances. Washington, 228 Va. at 548, 323 S.E.2d
at 586.
In the instant case, appellant stated, “[T]hat’s probably really all I can say,” after he
described the argument that he had with the complainant. Later during the interview, when
Investigator Mack asked appellant, “[C]an you tell me about that?” appellant replied “I’d rather
not.” Neither statement is an unequivocal invocation of the right to remain silent that would lead
a reasonable person to believe that appellant had revoked his earlier Miranda waiver. As the trial
court found, the first statement ends a sequence of thoughts and the second response is an
-4- indication that appellant does not want to answer a particular question. Neither statement
manifests an express revocation of his earlier waiver.1
Accordingly, we affirm the judgment of the trial court.
Affirmed.
1 Because we find that the trial court did not err in denying appellant’s motion to suppress, we need not address the Commonwealth’s alternative arguments that any error was harmless and appellant waived any objection to the error by introducing evidence of a similar kind at trial. -5-