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

• Court: Court of Appeals of Virginia
• Decided: April 7, 1998
• Docket: 0078972
• Status: Unpublished

Opinion

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

2 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

3 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.