Walter D. Boone, Jr. v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
WALTER D. BOONE, JR.
MEMORANDUM OPINION* BY
v. 	Record No. 0934-99-1 	JUDGE SAM W. COLEMAN III
APRIL 4, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Ben Pavek, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Walter D. Boone was convicted in a bench trial of
conspiracy to commit robbery, carjacking, and use of a firearm
during the commission of a felony. 	On appeal, he argues that
the trial court erred by denying his motion to suppress his
statement made to the police. 	We disagree and affirm.
BACKGROUND
Derrick Taylor and Tiante Carter were washing Taylor's car
at a car wash just after midnight. 	Boone and another individual
approached Taylor and inquired of him whether he was interested

- 2 -
in buying marijuana. 	Taylor responded that he did not have any
money but that he could get some money. 	At that point, Boone
pulled up his shirt and exposed a firearm that was tucked in the
waistband of his pants. 	Boone ordered Taylor and Carter to walk
across the street. 	Boone then stole Taylor's car; however, when
Boone drove the car from the parking lot, he hit a telephone
pole and a tree. 	Boone abandoned the car and fled.
Shortly after the incident, Boone was apprehended,
arrested, and transported to the police station. 	At
approximately 3:30 a.m., Boone was taken to an interrogation
room; at 5:20 a.m., Sergeant Samuel A. Thomson read Boone the
Miranda warnings and attempted to question him. 	Thomson
testified that Boone said "he did not wish to talk to [him] at
that time." 	Thomson immediately ceased questioning Boone and
left the room. 	At 8:20 a.m., Thomson moved Boone to a different
interrogation room where Boone would have access to water and a
restroom. 	Thomson testified that he again informed Boone of his
rights under Miranda and, at that point, Boone indicated that he
wanted to make a statement.
In Boone's statement, he admitted that three other
codefendants drove to the car wash where they encountered Taylor
and Carter. 	Boone brandished a firearm and asked Taylor for his
money. 	Boone then ordered the victims to walk across the
street. 	Boone acknowledged that he attempted to steal Taylor's

- 3 -
car but drove into a telephone pole and onto a curb. 	Boone and
the codefendants fled the scene and were later apprehended.
The trial court found that Boone unequivocally invoked his
right to remain silent when he stated that he "did not wish to
talk to [the officer] at that time." 	However, the trial judge
also found that the officer "scrupulously honored" Boone's right
to remain silent and that Boone's statement was not unlawfully
obtained. 	A significant period of time elapsed between the
first and second interviews. 	Boone was again advised of his
Miranda rights, and he waived those rights before the second
interview in which he confessed to having committed the crimes.
ANALYSIS
Boone argues that the trial court erred by denying his
motion to suppress his confession because the law enforcement
authorities failed to "scrupulously honor" his request to remain
silent.
"If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease." 	Miranda v. Arizona, 384 U.S.
436, 473-74 (1966). 	"An accused in custody may waive his fifth
amendment rights, but the Commonwealth must prove by a
preponderance of the evidence that the waiver was made
voluntarily, knowingly and intelligently." 	Pugliese v.
Commonwealth, 16 Va. App. 82, 87, 428 S.E.2d 16, 21 (1993).

- 4 -
"[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).
"Whether a person's decision to remain silent has been
'scrupulously honored' requires an independent examination of
the circumstances." 	Pugliese, 16 Va. App. at 88, 428 S.E.2d at
21. 	In 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).
This Court considers the following five factors in
determining whether an accused's invocation of his right to
remain silent was scrupulously honored:
[f]irst, 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." 	[Mosley, 423 U.S. at 104].
Second, whether there was an immediate
cessation of the initial interrogation, and
no attempt to persuade defendant to
reconsider his position. 	Id. 	Third,
whether the police resumed questioning "only
after the passage of a significant period of
time." 	Id. at 106. 	Fourth, whether Miranda
warnings preceded the second questioning.
Id. at 104. 	Fifth, whether the second
interrogation was limited to a crime that
had not been the subject of the earlier
interrogation. 	Id.

- 5 -
Weeks v. Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386
(1994).
Here, Boone was advised of his Fifth Amendment rights
before the initial interview. 	After Boone indicated that he did
not wish to make a statement "at that time," the officer
immediately ceased the interview and no attempt was made to
pressure Boone to reconsider his position. 	Three hours elapsed
between the first and second interviews, and prior to the second
interview, Boone was again advised of his Miranda rights. 	Boone
indicated that he understood his rights and said that he wished
to make a statement.
Even though the officer attempted to question Boone in the
second interview regarding the same incident that the officer
questioned him about during the first interview, we find that
the second attempt to question Boone was not a violation of his
Fifth Amendment right to remain silent. 	See Weeks, 248 Va. at
471-72, 450 S.E.2d at 387 (finding that confession not
constitutionally invalid even though second interview involved
some of the same subject matter discussed during the initial
interview). 	Boone unequivocally invoked his right to remain
silent during the first interview; however, he stated that he
did not wish to speak with the officer "at that time." 	His
statement implied that he was considering whether to cooperate
with the officers and whether he would be willing to make a

- 6 -
statement at a later time. 	After several hours had passed,
Boone was again advised of his Miranda rights, at which time he
made a statement. 	Boone was not pressured or subjected to
coercive forces. 	We find that the reinitiation of contact after
Boone invoked his right to remain silent was not an attempt to
"wear down his resistance and make him change his mind."
Mosley, 423 U.S. at 105-06. 	We find that the police
"scrupulously honored" Boone's right to remain silent.
Accordingly, we hold that the trial court did not err by denying
his motion to suppress. 	We, therefore, affirm.
Affirmed.