                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia


ANTHONY T. ALSTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 2382-00-1                 JUDGE ROBERT J. HUMPHREYS
                                              SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          Joseph R. Winston, Special Appellate Counsel
          (Public Defender Commission, on brief), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Anthony T. Alston appeals his convictions, after a bench

trial, for statutory burglary and grand larceny.       Alston

contends that the trial court erred in denying his motion to

suppress his statement, which he argues was the result of a

custodial interrogation wherein he was refused his right to

representation.     Finding no error, we affirm his convictions.

     During the early morning hours of February 12, 2000, Alston

broke into the Tidewater Feed and Seed Store and stole seven

"leather studded spiked dog collars."    Each collar had a minimum

value of $35.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On April 21, 2000, Alston was arrested for another burglary

and grand larceny that occurred on March 22, 2000 at the One

Stop Pet Shop.   He requested and was appointed counsel for these

charges during his April 22, 2000 arraignment, and was retained

in custody.

     On May 9, 2000, Detectives M.B. Logwood and Al Donker of

the Portsmouth Police Department removed Alston from jail and

took him to the detective bureau.   After arriving at the bureau,

the detectives advised Alston of his Miranda rights.    Alston

waived his rights and agreed to speak with the detectives.

Detective Logwood informed him that they wanted to interview him

"in reference to a couple of [additional] burglaries that had

occurred in the city."   As a result of the questioning, Alston

confessed to burglarizing the Tidewater Feed and Seed Store in

February of 2000.   He gave a written statement, as well as a

taped oral statement.    At no time during the questioning did he

indicate that he was represented by counsel, nor did he request

counsel.    The detectives were unaware that Alston had been

appointed counsel for the charges related to the March 22

burglary.

     At trial, Alston moved to suppress his statement arguing

that it had been given in violation of his right to legal

counsel.    Specifically, Alston argued that since he had

requested appointed representation for the charges related to

the March 22 burglary, he had invoked his right to counsel for

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purposes of not only those particular charges, but also for any

other unrelated charges for which police might want to question

him.   The trial court denied Alston's motion, noting that there

was no evidence Alston had invoked his Fifth Amendment right to

counsel for either set of charges.      Thus, the court found that

Alston's initial request for appointed counsel on the unrelated

charges fell within the Sixth Amendment, which does not apply to

other offenses that may come to the attention of police.

            On appeal from a trial court's denial of a
            motion to suppress, we must review the
            evidence in the light most favorable to the
            Commonwealth, granting to the Commonwealth
            all reasonable inferences fairly deducible
            from it. The findings of the trial court
            will not be disturbed unless plainly wrong
            or without evidence to support them. When
            reviewing the trial court's denial of a
            defendant's motion to suppress evidence,
            "[t]he burden is upon [the defendant] to
            show that th[e] ruling, when the evidence is
            considered most favorably to the
            Commonwealth, constituted reversible error."

McCloud v. Commonwealth, 35 Va. App. 276, 280-81, 544 S.E.2d

866, 868 (2001) (quoting McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc)).

       We find no error in the trial court's determination that

Alston failed to invoke his Fifth Amendment right to counsel for

the March 22 charges.   Thus, his request for counsel at




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arraignment for those charges would have fallen within the

constitutional protection afforded by the Sixth Amendment. 1

        The Sixth Amendment right to counsel is "offense specific."

See Texas v. Cobb, 121 S. Ct. 1335 (2001).      Therefore, "'[i]t

cannot be invoked once for all future prosecutions, for it does

not attach until a prosecution is commenced, that is, at or

after the initiation of adversary judicial criminal proceedings

— whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.'"       Id. at 1340 (quoting

McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).

        Although it is true that "when the Sixth Amendment right to

counsel attaches, it does encompass offenses that, even if not

formally charged, would be considered the same offense under the

Blockburger test," there was no evidence to suggest that

Alston's burglary of the Tidewater Feed and Seed Store on

February 12, 2000 was a result of the "same act or transaction"

as his later burglary of the One Stop Pet Shop on March 22,

2000.       Id. at 1343; see also Blockburger v. United States, 284

U.S. 299, 304 (1932).      Accordingly, the protection afforded

Alston by the Sixth Amendment extended only to the charges and

proceedings concerning the March 22 burglary, and did not extend

to bar police from properly questioning him concerning the

unrelated matter of the February burglary of the Tidewater


        1
       Indeed, on appeal, Alston does not maintain that his Fifth
Amendment rights were violated.

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Feed and Seed Store.   Thus, we affirm the decision of the trial

court.

                                                         Affirmed.




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