COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Raphael and Senior Judge Petty PUBLISHED
Argued at Richmond, Virginia
JAMAR PAXTON OPINION BY v. Record No. 0910-22-2 JUDGE WILLIAM G. PETTY MARCH 12, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Claire G. Cardwell,1 Judge
Kelsey M. Bulger, Deputy Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.
Jamar Paxton appeals his convictions for second-degree murder and use of a firearm during
the commission of a felony. He argues that the trial court erred by not suppressing incriminating
statements he made to the police after he unequivocally invoked his right to remain silent. We
agree with Paxton that the police did not scrupulously honor his right to cut off questioning. The
trial court therefore should have suppressed his incriminating statements. Its failure to do so was
not harmless. Accordingly, we reverse Paxton’s convictions and remand for further proceedings.2
1 Judge Beverly W. Snukals presided over the suppression hearings. Judge Cardwell presided over the trial and sentencing. 2 “[W]e strive to resolve cases on the ‘best and narrowest grounds available.’” DeLuca v. Commonwealth, 73 Va. App. 567, 580 n.4 (2021) (quoting Delp v. Commonwealth, 72 Va. App. 227, 235 n.4 (2020)). Given our resolution of Paxton’s assignment of error challenging the trial court’s denial of his first suppression motion, we do not address his assignment of error challenging the trial court’s denial of his second suppression motion concerning the same evidence. BACKGROUND
We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing
party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting
Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)).
In May 2020, the police arrested Paxton for robbery and use of a firearm following the
death of his girlfriend, Dominique Danzy. Detective James Baynes interrogated Paxton at the
police station. Baynes read Paxton his Miranda3 rights from a waiver form before questioning
him. Paxton then read the form to himself, stated that he understood his rights, and signed the
form. The form indicated that Paxton “wish[ed] to waive [his rights] and make a statement.”
Baynes told Paxton that he was investigating Danzy’s homicide and that the evidence
pointed to Paxton’s guilt. Baynes conveyed that his investigation established that Paxton and
Danzy had purchased a .22 caliber rifle and ammunition on the day of Danzy’s death. Baynes
also understood that Danzy’s car was “taken” at some point “after she was killed.” The police
later found that car near a hotel where Paxton was staying. They also found the rifle, shell
casings, and blood in the car. The shell casings matched shell casings found at the scene of
Danzy’s homicide, and the police recovered a fingerprint from the rifle.
Paxton claimed that he last saw Danzy around 2:00 p.m. on the day she was killed, she
still had her car and the gun at that time, and he later learned about her murder from the news.
Baynes challenged Paxton’s story and asked Paxton why he shot Danzy. The following
exchange then occurred:
3 Miranda v. Arizona, 384 U.S. 436 (1966). -2- Paxton: Sir I did not shoot her.
Baynes: You did shoot her.
Paxton: I don’t wanna talk no more.
Baynes: Ok, that’s fair enough, absolutely fair enough. I gave you the opportunity to talk, you didn’t want to talk, and that’s fine, so you’re being charged right now with the carjacking of the car, and use of a firearm in the commission of a felony, and you will be taken to the magistrate and processed.
Paxton: Sir.
Baynes: Yes.
Paxton: What?
Baynes: Mmm-hmm, unless you can come up with a reasonable explanation, . . .
Paxton: Sir, what else do you wanna know? I’m tellin[g] you everything.
Baynes: I wanna hear the truth.
Paxton maintained his innocence for about 20 more minutes while Baynes continued
interrogating him. Baynes suggested that Paxton had acted in self-defense and asked what
Danzy had done to make Paxton feel like he had to defend himself. Paxton then told Baynes that
he shot Danzy after she tried to kill him; he made many incriminating statements to that effect
over the next half an hour.
Paxton moved before trial to suppress his incriminating statements, arguing that Baynes
failed to stop the interrogation after Paxton unequivocally invoked his right to remain silent. The
trial court agreed that Paxton unequivocally invoked his right but found that he then voluntarily
reinitiated the interrogation by asking, “What?” In the trial court’s view, Paxton “thought he
[had] talked his way out of it” and wanted to try again after realizing that he would still be
charged. The trial court therefore denied Paxton’s suppression motion.
-3- Paxton later filed a second motion to suppress the statements, this time arguing that his
statements were involuntary, independent of whether Baynes violated Miranda. The court
denied that motion as well after a hearing.
During its case-in-chief at trial, the Commonwealth introduced a recording and transcript
of the interrogation. Paxton testified in his own defense that he last saw Danzy around 2:00 p.m.
on the day she was killed and did not learn about her murder until the next day. During his
testimony his attorney asked him about his previous confession to the police. According to
Paxton, he tried to tell Baynes that he was innocent and “didn’t know anything” but Baynes
“didn’t want to take that as an answer,” “kept telling [Paxton] that [he] did something that [he]
did not do,” and would not let him end the questioning. After Paxton’s attorney asked him, “you
watched the entire interrogation with these jurors; why would you confess to a crime you didn’t
commit?,” Paxton explained that he felt like it was the only way to stop the questioning. He also
acknowledged “admitting things to the detective” that he testified were untrue.
The jury convicted Paxton of second-degree murder and use of a firearm in the
commission of murder. The trial court sentenced Paxton to 33 years’ imprisonment with 16
years suspended.
ANALYSIS
I. The trial court erred by not suppressing Paxton’s incriminating statements.
“No person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. Thus, the prosecution may not “us[e] statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.”
Keepers v. Commonwealth, 72 Va. App. 17, 34 (2020) (quoting Miranda v. Arizona, 384 U.S.
436, 444 (1966)). At a minimum, the police must warn a suspect in their custody that he possesses
-4- certain rights, such as the right to remain silent. Miranda, 384 U.S. at 479. The Commonwealth
bears the burden of proving that the suspect waived his right to remain silent “knowingly,
intelligently, and voluntarily.” Knox v. Commonwealth, 52 Va. App. 366, 372 (2008) (quoting
Green v. Commonwealth, 27 Va. App. 646, 652 (1998)).
A suspect may invoke his right to remain silent “at any point prior to or during questioning.”
Thomas v. Commonwealth, 72 Va. App. 560, 574 (2020) (citing Edwards v. Commonwealth, 451
U.S. 477, 482 (1981)). He must do so “unambiguously.” Id. (citing Berghuis v. Thompkins, 560
U.S. 370, 381 (2010)). We review de novo “[w]hether a statement sufficiently invokes . . . the
right to silence” while “consider[ing] the substance of the statement as well as the context in
which it was made.” Id. (citing Commonwealth v. Redmond, 264 Va. 321, 327 (2002); Midkiff v.
Commonwealth, 250 Va. 262, 267 (1995)). What a defendant actually said is a factual question
we review for clear error. Id. at 573-74.
We agree with the trial court that Paxton unambiguously invoked his right to remain
silent. Our Supreme Court has repeatedly used the statement, “I do not want to answer any more
questions” as the exemplar of an unambiguous invocation. Akers v. Commonwealth, 216 Va. 40,
46 (1975); Midkiff, 250 Va. at 268. Paxton’s statement, “I don’t wanna talk no more,” is
similarly unambiguous. That statement clearly and unequivocally conveyed that Paxton did not
want to answer any more of Baynes’s questions, and the Commonwealth does not argue
otherwise on appeal.
“[T]he admissibility of statements obtained after the person in custody has decided to
remain silent depends . . . on whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’” Michigan v. Mosley, 423 U.S. 96, 104 (1975). Once the suspect “indicates that he
wishes to remain silent . . . ‘the interrogation must cease.’” Thomas, 72 Va. App. at 574 (quoting
Edwards, 451 U.S. at 482). Our Supreme Court has adapted the facts of the United States
-5- Supreme Court’s decision in Mosley into a five-factor test for determining whether the police
scrupulously honored the suspect’s right when they resume questioning on their own initiative,
one factor of which is whether they did so “only after the passage of a significant period of
time.” Weeks v. Commonwealth, 248 Va. 460, 471 (1994) (quoting Mosley, 423 U.S. at 106).
We sometimes refer to these factors as the Weeks factors.
The United States Supreme Court has also held, however, that the police may resume
questioning if “the accused himself initiates further communication, exchanges, or conversations
with the police” and that reinitiation constitutes a knowing, intelligent, and voluntary Miranda
waiver. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (quoting Edwards, 451 U.S. at 485).
Virginia courts have not typically applied the Weeks factors to cases involving a claimed
reinitiation by the suspect. See generally Commonwealth v. Quarles, 283 Va. 214 (2012);
Thomas, 72 Va. App. 560; Knox, 52 Va. App. 366; Ferguson v. Commonwealth, 52 Va. App.
324 (2008); Rashad v. Commonwealth, 50 Va. App. 528 (2007); Medley v. Commonwealth, 44
Va. App. 19 (2004) (en banc); Giles v. Commonwealth, 28 Va. App. 527 (1998). Even if the
passage of time is not a formal factor in suspect-reinitiation cases, however, it can still inform
our analysis in two crucial ways. First, it may inform whether the interrogation had actually
ended. Second, when it is ambiguous whether the suspect wishes to reinitiate, a short period of
time since the suspect’s initial invocation may militate against finding that the suspect had so
abruptly changed his mind.
We review de novo whether the police “scrupulously honored” the suspect’s invocation
of the right to remain silent. Medley, 44 Va. App. at 37. The trial court’s subsidiary factual
findings “are entitled to a presumption of correctness.” Id. at 37-38 (quoting Correll v.
Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995); Pugliese v. Commonwealth, 16 Va. App. 82, 88
(1993)). When the accuracy of the recorded dialogue or transcript is undisputed, we also review
-6- de novo whether a suspect’s statements reinitiated questioning. Overbey v. Commonwealth, 65
Va. App. 636, 647 & n.5 (2015) (citing Rashad, 50 Va. App. at 536).
An officer interrogates a suspect when “an objective observer would view [the] officer’s
words or actions as designed to elicit an incriminating response.” Thomas, 72 Va. App. at 583
(quoting Watts v. Commonwealth, 38 Va. App. 206, 217 (2002)). Not every statement by an
officer is interrogatory. For example, we have recognized that “telling a suspect about the
charges filed against him and their corresponding penalties would not reasonably call for an
incriminating response.” Id. at 586. But we have also made clear that “[t]he police may not ask
questions, even during booking, that are designed to elicit incriminatory admissions.” Id. at 583
(emphasis added) (quoting Watts, 38 Va. App. at 216). Whether an officer’s statement is
interrogatory turns on how coercive it is and “not strictly the [statement’s] content.” Id. at 584.
“Similarly, not every statement by an accused can fairly be considered further
conversation that effectively waives the accused’s right to silence.” Id. at 583. The
Commonwealth must prove that the suspect’s statements “represent[ed] a desire on the part of
[the] accused to open up a more generalized discussion relating directly or indirectly to the
investigation.” Id. at 585 (quoting Bradshaw, 462 U.S. at 1045). For example, we have held that
a suspect who asked “[c]an we just talk later?” and then made incriminating statements when
told “there might not be a later” demonstrated a desire to reopen the discussion. Knox, 52
Va. App. at 377-78; see also Correll v. Commonwealth, 232 Va. 454, 463 (1987) (holding that
the suspect showed a willingness to reopen the discussion by offering to explain the results of a
polygraph test). By contrast, inquiries “relating to routine incidents of the custodial
relationship[] will not generally ‘initiate’ a conversation.” Bradshaw, 462 U.S. at 1045.
In this case, an objective observer would conclude that Baynes’s request for “a
reasonable explanation” of the evidence he presented to Paxton was designed to elicit an
-7- incriminating response and was therefore interrogatory. The Commonwealth does not contend
otherwise but maintains that Baynes immediately ceased the interrogation when Paxton invoked
his right to remain silent, and Paxton then reinitiated the conversation by stating “Sir. . . . What?”
That position is untenable when we view the circumstances in context.
The record establishes that within moments of Paxton’s invocation, Baynes undisputedly
posed an interrogatory question. Indeed, while facially claiming to honor Paxton’s invocation of
his right to silence, Baynes dangled the possibility of Paxton escaping criminal liability if he kept
talking and provided Baynes with a “reasonable explanation” for the circumstances Baynes had
outlined. Baynes’s conduct undermines any claim that the interrogation had in fact ended.
We reject the Commonwealth’s contention that Paxton voluntarily reinitiated the
interrogation. “Any consideration of whether a defendant ‘re-initiated’ the dialogue with police
necessarily presumes that police officers have stopped the interrogation.” Ferguson, 52
Va. App. at 340. We have already concluded that the interrogation had not stopped.
Furthermore, neither we nor the Supreme Court have ever held that a suspect reinitiated an
interrogation based on so vague a statement as asking the interrogating officer, “What?” We
require a much clearer statement of intent before we conclude that Paxton meant to abandon a
right he had unequivocally invoked fewer than 30 seconds earlier.
If an officer is unsure whether a suspect wishes to reinitiate the interrogation, he properly
may question the suspect about whether he still wishes to remain silent. Rashad, 50 Va. App. at
536 (“Given appellant’s ambiguous statements, the officers were justified in continuing to
question appellant about his decision to remain silent.”). For example, the United States
Supreme Court held that an officer did not violate Miranda when he responded to the suspect’s
post-invocation question by stating, “You do not have to talk to me. You have requested an
attorney and I don’t want you talking to me unless you so desire” and continued the interrogation
-8- only after the suspect made clear that he wished to waive his rights. Bradshaw, 462 U.S. at
1042, 1046. Similarly, we have held that officers did not violate Miranda when they responded
to the suspect’s post-invocation question by saying “we can’t talk to you anymore [because]
you’ve asked for a lawyer” and then asking several questions to clarify whether the suspect
wished to waive his right. Rashad, 50 Va. App. at 536. So, the police do not violate Miranda
when they respond to an ambiguous reinitiation by emphasizing the suspect’s rights and
explaining that they may not talk to him about the case unless he voluntarily waives those rights.
See also Medley, 44 Va. App. at 36 (holding that officers properly asked questions to clarify the
defendant’s statement, “I want all my rights, but I still want to talk to you”).
By contrast, Baynes did not reiterate Paxton’s rights, attempt to answer Paxton’s
question, or ask Paxton to clarify his question. Instead, he acknowledged that it was “fair” that
Paxton had invoked his rights only to immediately challenge Paxton to provide incriminating
information. The record demonstrates that Baynes’s respect for Paxton’s right to remain silent
was anything but “scrupulous.” Consequently, the trial court erred by denying Paxton’s
suppression motion.
Moreover, that error was not harmless. When analyzing constitutional harmless error, we
ask whether it is “clear beyond a reasonable doubt that a rational [factfinder] would have found the
defendant guilty absent the error.” Commonwealth v. White, 293 Va. 411, 422 (2017) (alteration in
original) (quoting Neder v. United States, 527 U.S. 1, 17 (1999)). Incriminating statements,
“deliberately made, precisely identified and clearly proved afford[] evidence of a most satisfactory
nature and may furnish the strongest and most convincing evidence of truth.” Prince v.
Commonwealth, 228 Va. 610, 613 (1985). Here, Paxton’s incriminating statements that he killed
Danzy were powerful evidence in a case in which the prosecution’s remaining evidence was solely
-9- circumstantial. Thus, we cannot conclude with certainty that the fact finder would have convicted
Paxton absent his incriminating statements.
II. Paxton did not waive his Miranda objection by testifying.
We next address the Commonwealth’s argument that Paxton waived his challenge to the
introduction of his incriminating statements by testifying about those statements at trial. “When ‘an
accused unsuccessfully objects to evidence which he considers improper and then on his own
behalf introduces evidence of the same character, he thereby waives his objection, and [the
appellate court] cannot reverse for the alleged error.’” Stevens v. Commonwealth, 72 Va. App.
546, 557 (2020) (alteration in original) (quoting Hubbard v. Commonwealth, 243 Va. 1, 9
(1992)). “This legal maxim is sometimes called the ‘same-evidence principle.’” Id. (quoting
Isaac v. Commonwealth, 58 Va. App. 255, 260 (2011)). The principle has limits, however. For
example, it does not apply to evidence elicited “during cross-examination of a witness or in
rebuttal testimony.” Zektaw v. Commonwealth, 278 Va. 127, 134 (2009) (quoting
Drinkard-Nuckols v. Andrews, 269 Va. 93, 102 (2005)). And, in cases such as this one, it must
yield to the United States Constitution.
“When an accused takes the stand ‘in order to overcome the impact of confessions
illegally obtained and hence improperly introduced, then his testimony was tainted by the same
illegality that rendered the confessions themselves inadmissible.’” Pearson v. Commonwealth,
221 Va. 936, 945 (1981) (quoting Harrison v. United States, 392 U.S. 219, 223 (1968)). In other
words, “the same principle that prohibits the use of confessions [illegally] procured also prohibits
the use of any testimony impelled thereby [as] the fruit of the poisonous tree.” Harrison, 392
U.S. at 222. The prosecution may not, for example, introduce at a retrial the defendant’s
testimony from a previous trial if that testimony was “impelled by the prosecution’s wrongful
use of [the defendant’s] illegally obtained confessions.” Id. at 224.
- 10 - In essence, when the prosecution’s illegally-obtained evidence impels the defendant’s
testimony, that impelled testimony cannot be used as a loophole to cleanse the illegally-obtained
evidence. Id. at 222. Indeed, considering that a defendant has a right not to testify that is
grounded in the same constitutional protections as Miranda, the defendant’s impelled testimony
may be viewed as a continuing violation of his privilege against self-incrimination. See Salinas
v. Texas, 570 U.S. 178, 184 (2013) (explaining that “a criminal defendant has an ‘absolute right
not to testify’” (quoting Turner v. United States, 396 U.S. 398, 433 (1970) (Black, J.,
dissenting))). It would thus be inappropriate to apply the same-evidence principle when the
“same evidence” is tainted by the same unconstitutional conduct as the challenged evidence.
The Commonwealth urges us to read Harrison more narrowly.4 In the Commonwealth’s
view, Harrison is limited to situations in which a defendant objects at a second trial to the
prosecution’s use of the defendant’s testimony from an earlier trial. But our Supreme Court’s
holding in Pearson undermines the Commonwealth’s argument. In Pearson, the Court
concluded that the trial court had erroneously admitted incriminating statements obtained after
the police disregarded Pearson’s invocation of his Miranda rights. Pearson, 221 Va. at 943-44.
Despite the fact that Pearson testified about his statements and “confirmed [them] in all material
respects,” the Court did not apply the same-evidence principle. Id. at 945. Instead, the Court
took an expansive view of Harrison; in considering on direct appeal whether the trial court’s
error was harmless, the Court declined to consider Pearson’s testimony from that same trial, as
that testimony was tainted by the erroneously-admitted evidence. Id. Pearson thus makes clear
that Harrison is not restricted to retrials.
4 Neither party cited to Harrison or Pearson in their original briefing. We ordered supplemental briefing to address Harrison as well as the case of Bynum v. Commonwealth, 28 Va. App. 451 (1998). - 11 - Trying another approach, the Commonwealth asserts that Paxton failed to establish that
the admission of his incriminating statements impelled him to testify.5 “But, having illegally
placed his confessions before the jury, the [Commonwealth] can hardly demand a demonstration
by [Paxton] that he would not have testified as he did if his inadmissible confessions had not
been used.” Harrison, 392 U.S. at 224. Even if Paxton would have testified had the
Commonwealth not introduced his incriminating statements, the “natural inference” is that he
would not have testified about those statements. Id. at 225-26. The Commonwealth bears the
burden of dispelling that inference, id. at 226, and it has not done so. After all, Paxton informed
the court before trial that its decision whether to suppress the statements would “significantly
impact whether [he] testifie[d] or not.”
We agree with the parties that our statement in Bynum v. Commonwealth, 28 Va. App.
451, 459 (1998), that the defendant’s testimony waived his Miranda challenge is dicta. When an
“alternative justification for [a] ruling [is] unnecessary to the holding, . . . it is dicta.” Lofton
Ridge, LLC v. Norfolk S. Ry., 268 Va. 377, 383 (2004). We held in Bynum that the trial court did
not err by admitting the defendant’s incriminating statements. Bynum, 28 Va. App. at 458-59.
The subsequent alternative holding applying the same-evidence principle was therefore dicta that
“cannot ‘serve as a source of binding authority.’”6 Simon v. Commonwealth, 58 Va. App. 194,
5 The Commonwealth’s reliance on Rule 5A:18 is inapposite. Under that rule, “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.” Rule 5A:18. The basis for reversal is not that the trial court allowed Paxton to testify. The basis for reversal is that the trial court erroneously admitted Paxton’s incriminating statements to Baynes; Paxton preserved that argument under Rule 5A:18. 6 We are also not bound by the unpublished concurrence in Dozier v. Commonwealth, No. 0812-07-01 (Va. Ct. App. July 15, 2008) (Kelsey, J., concurring), or the unpublished opinion in Stevenson v. Commonwealth, No. 1210-05-1 (Va. Ct. App. May 30, 2006). See Rule 5A:1(f) (explaining that unpublished cases are not “binding authority”). - 12 - 201 (2011) (quoting Newman v. Newman, 42 Va. App. 557, 566 (2011)). Nor is Bynum’s dicta
persuasive insofar as it ignores Harrison and Pearson.7
In short, the Commonwealth cannot rely on the effect its illegally-obtained and
erroneously-admitted evidence had on inducing Paxton’s decision to waive his right not to
testify. Harrison, 392 U.S. at 224-25; cf. Simmons v. United States, 390 U.S. 377, 394 (1968)
(“[W]e find it intolerable that one constitutional right should have to be surrendered in order to
assert another.”). We therefore decline to apply the same-evidence principle in this case.8
CONCLUSION
The trial court erred by finding that Paxton reinitiated the police interrogation. That error
was not harmless, and Paxton did not waive his objection to the admission of incriminating
statements by testifying about the interrogation. Accordingly, we reverse Paxton’s convictions and
remand for a new trial if the Commonwealth be so advised.
Reversed and remanded.
7 In Isaac, a case decided after both Harrison and Pearson, we stated that the same-evidence principle “affects evidentiary objections based on constitutional as well as statutory and common law grounds.” Isaac, 58 Va. App. at 260. In making that statement, however, Isaac relied solely on the portion of Bynum we now recognize as dicta and did not address Harrison or Pearson. Id. None of the other cases cited in Isaac applied the same-evidence principle to a constitutional objection. Nor have any published cases since Isaac applied the principle to a constitutional objection. Finally, Isaac involved a Fourth Amendment objection as opposed to the Fifth Amendment objection before us. We need not determine the full contours of the principle’s application to constitutional objections. It is enough to say that Isaac’s statement about constitutional objections does not bind us in the face of the more relevant decisions from the United States and Virginia Supreme Courts in Harrison and Pearson. 8 Of course, the Commonwealth may use statements obtained in violation of Miranda to impeach the defendant’s testimony during cross-examination. Harris v. New York, 401 U.S. 222, 225-26 (1971). But it may not use those statements as affirmative evidence of guilt during its case-in-chief, as it did here. Cf. Oregon v. Elstad, 470 U.S. 298, 307 (1985) (explaining that the presumption that any statement obtained in violation of Miranda was compelled is “irrebuttable for purposes of the prosecution’s case in chief”). The Harris principle therefore does not justify a waiver finding either. - 13 - Raphael, J., concurring.
I join the majority’s opinion in full, including the discussion in footnote 7. I agree that
the Supreme Court’s decision in Harrison v. United States, 392 U.S. 219 (1968), requires that we
find that Paxton did not waive his Fifth Amendment privilege against self-incrimination or his
Miranda objection simply because he testified in his case-in-chief to the same subject matter as
the improperly admitted confession. “The question is not whether [Paxton] made a knowing
decision to testify, but why. If he did so in order to overcome the impact of confessions illegally
obtained and hence improperly introduced, then his testimony was tainted by the same illegality
that rendered the confession[] [itself] inadmissible.” Id. at 223; see also Pearson v.
Commonwealth, 221 Va. 936, 945 (1981) (same).
To be sure, the rule in Harrison, followed by our Supreme Court in Pearson, is in tension
with the “same-evidence” waiver principle discussed in Bynum v. Commonwealth, 28 Va. App.
451, 459 (1998), and applied in Isaac v. Commonwealth, 58 Va. App. 255, 260-61 (2011). We
said in Bynum, “Having testified about the substance of his previously suppressed statement, Mr.
Bynum rendered harmless any error that may have occurred from the introduction of the
statement in the Commonwealth’s case-in-chief.” 28 Va. App. at 459. I agree with the majority
(and both parties) that that language was dictum. Based on that dictum, however, Isaac twice
cited Bynum as “holding [that] a defendant, by testifying to the substance of the statement in his
case in chief, waived his earlier Miranda objection to the prosecution’s admission of [that]
statement.” 58 Va. App. at 260, 262. Isaac read Bynum broadly, stating that the
same-evidence-waiver principle “affects evidentiary objections based on constitutional as well as
statutory and common law grounds.” Id. at 260.
The Commonwealth tells us that we are bound to apply that broad notion of waiver from
Isaac under the interpanel-accord doctrine. Commonwealth Supp. Br. 17. But I agree with the
- 14 - majority that that statement in Isaac was dictum. As footnote 7 of the majority opinion explains,
Isaac involved the same-evidence principle as applied to the waiver of a Fourth Amendment
objection, not a Fifth Amendment objection. We should not presume that Isaac ignored a
“fundamental and longstanding precept” of judicial restraint by deciding the waiver question in
all constitutional settings, thereby engaging in the “unnecessary adjudication of a constitutional
issue.” Taylor v. Commonwealth, 78 Va. App. 147, 157 (2023) (quoting Commonwealth v.
Swann, 290 Va. 194, 196 (2015)). Indeed, neither Bynum nor Isaac cited Harrison or Pearson,
cases that bind us as vertical precedent on the Fifth Amendment question presented here:
Harrison because it was decided by the Supreme Court of the United States, and Pearson
because it was decided by the Supreme Court of Virginia.
I therefore agree with the majority that we should not view Isaac (let alone Bynum) as
answering the Fifth Amendment question. I acknowledge, however, that reasonable jurists might
disagree on that score.
But even assuming that Isaac (or Bynum) were deemed binding under the
interpanel-accord doctrine, we would still be bound by superseding precedent in Harrison.9 The
Supremacy Clause makes the Constitution of the United States “the supreme law of the land; and
the judges in every state shall be bound thereby, anything in the Constitution or laws of any State
to the contrary notwithstanding.” U.S. Const. art. V, cl. 2. As a result,
this much is certain: When a state [appellate] court opinion, whether in dicta or in its holding, conflicts with a holding of the United States Supreme Court on an issue of federal constitutional law, the United States Supreme Court ruling remains the binding precedent—“any state law, decision, or rule to the contrary notwithstanding.”
9 The supremacy of federal constitutional law here resolves the issue. So we need not decide whether an analogous rule of State-law supremacy would apply to our following a prior holding of the Supreme Court of Virginia (like Pearson) that was overlooked in earlier decisions of this Court. - 15 - Rushing v. Commonwealth, 58 Va. App. 594, 605 (2011) (quoting Chesapeake & Ohio Ry. Co. v.
Martin, 283 U.S. 209, 221 (1931)), reversed on other grounds, 284 Va. 270 (2012). “‘Needless
to say,’ only the United States Supreme Court ‘may overrule one of its precedents.’” Id.
(quoting Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per
curiam)).
By the same token, a state appellate court “‘has no discretion to disregard’ applicable
holdings of the United States Supreme Court.” Id. (quoting Jaynes v. Commonwealth, 276 Va.
443, 458 (2008)). This principle is hornbook law. See Bryan A. Garner, et al., The Law of
Judicial Precedent 679 (2016) (“With a federal question—that is, one arising under the
Constitution, statutes, or treaties of the United States—state courts must follow any applicable
U.S. Supreme Court decisions, overruling if necessary their own previous decisions to the
contrary.”).
In short, even if Isaac (or Bynum) were deemed binding on the waiver question under the
interpanel-accord doctrine, Harrison would still bind us under the Supremacy Clause.
- 16 -