                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Baker and Willis
Argued at Norfolk, Virginia


KENYATTA FERREL CHRISTIAN

v.        Record No. 0707-94-1           MEMORANDUM OPINION*
                                      BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                     JUNE 6, 1995


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   John C. Morrison, Jr., Judge
          John R. Doyle, III, for appellant.

          Donald R. Curry, Senior Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Kenyatta Ferrel Christian (appellant) appeals from his bench

trial conviction by the Circuit Court of the City of Norfolk for

robbery and use of a firearm in the commission of that felony.

At trial and in his brief before this Court, appellant contended

that the trial court, in violation of the Fifth and Fourteenth

Amendments to the Constitution of the United States, erroneously

permitted the prosecutor to cross-examine appellant concerning

his failure to inform the police of his alibi following his

arrest.

     In support of his conviction, the Commonwealth presented the

following evidence:    At approximately 6:50 a.m. on July 12, 1993,

the victim was stopped in his car in the drive-in lane of a

Burger King restaurant when appellant approached him exhibiting a

____________________

     *Pursuant to Code § 17-116.010, this opinion is not
designated for publication.


gun.   When appellant demanded entry to the car, the victim got

out.   Appellant then entered the car and drove it away.    Later

that same day, an employee of the victim observed appellant in

possession of the victim's car and reported the sighting to the

police.   Shortly thereafter, a policeman saw appellant driving

the car and gave chase.   The chase ended when appellant abandoned

the car and entered a nearby garage.     The policeman followed

appellant, caught up with and arrested him.
       The record is silent as to whether appellant was advised of

his Miranda rights.    There was no evidence that appellant said

anything to the police except that he later conversed with one of

the detectives to some extent.

       At trial, appellant testified on his own behalf.    He stated

that on the morning of the robbery he had not been at the Burger

King, that he had slept-in until 9:00 a.m., and then had gone to

look for work in the area where he was subsequently arrested.

When the prosecutor, on cross-examination, asked appellant why

did he not inform the police of his alibis when he was arrested,

appellant's objections were sustained.    However, over appellant's

objection, the trial court permitted the prosecutor to ask the

following questions:
          Did you ever mention to the police anything
          about the Omni?

            Did you ever mention to them being at
            Waterside?

            About the fudgery?


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             About any of the other people you talked to?

             Did you ever mention to the police that you
             were at your mother's house until 9:00 that
             morning, asleep?


        Appellant concedes that we must presume that no Miranda 1

warnings were given.     Thus, appellant's election to not give the

police information concerning his alibis was made on his own,

without the assurance of Miranda.

        In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court

held that when the accused remained silent after having been

warned of his Miranda rights, thereafter, if the accused elects
to testify on his behalf, the prosecutor may not inquire why at

the time of his arrest he did not give the police the information

he revealed in his defense at trial.     However, in a line of

subsequent United States Supreme Court cases, the Doyle decision

was limited to cases in which the accused was informed of his

right to remain silent.     See Brecht v. Abrahamson, 113 S. Ct.

1710 (1993); Fletcher v. Weir, 455 U.S. 603 (1982); Jenkins v.
Anderson, 447 U.S. 231 (1980) 2 ; In Abrahamson, the Court said:
          The "implicit assurance" upon which we have
          relied in our Doyle line of cases is the
          right-to-remain-silent component of Miranda.
           Thus, the Constitution does not prohibit the
          use for impeachment purposes of a defendant's
          silence prior to arrest, or after arrest if
          no Miranda warnings are given. Such silence
    1
     Miranda v. Arizona, 384 U.S. 436 (1966).
    2
     In Jenkins, the Supreme Court held that when an accused elects
to testify after remaining silent at the time of his arrest, he
waives his Fifth Amendment privileges.



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          is probative and does not rest on any implied

          assurance by law enforcement authorities that
          it will carry no penalty.


Abrahamson, at 1716.

     In accord with Weir and Abrahamson, because the record does

not show that appellant remained silent at the time of this

arrest after being warned of his rights, we hold that the trial

court did not err in permitting the objected to questions.

     Accordingly, the judgment of the trial court is affirmed.
                                             Affirmed.




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