                  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.


     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


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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


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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).


                               - 3 -
"[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.




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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


                             - 5 -
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.




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