                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 2484-00-2                   JUDGE RICHARD S. BRAY
                                                APRIL 17, 2001
DYLAN LOPEZ TYREE


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Denise Y. Lunsford; Kelly A. Hobbs (George H.
          Dygert & Associates, on brief), for appellee.


     Dylan Lopez Tyree (defendant) was indicted in the trial court

for first degree murder, robbery, burglary and related use of a

firearm, violations of Code §§ 18.2-32, -58, -91 and -53.1,

respectively.   Alleging violations of his constitutional right to

remain silent, defendant successfully moved the court to suppress

his post-arrest statements to police.   The Commonwealth appeals to

this Court pursuant to Code § 19.2-398, maintaining defendant did

not properly assert his right to silence, but, even so, police

committed no violation.    We disagree and affirm the order.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
       The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                  I.

       On appeal of a ruling on a motion to suppress evidence, we

consider the evidence in the light most favorable to the

prevailing party below, defendant in this instance, together

with all reasonable inferences fairly deducible from such

evidence.     Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991).    The burden is upon the Commonwealth

"to show the trial judge's ruling . . . constituted reversible

error."     Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d

835, 838 (1998).

       Defendant was arrested for the subject offenses by Albemarle

County police at 9:30 a.m. on October 8, 1998.     Shortly

thereafter, county Detectives Hanover and Henshaw advised

defendant of his Miranda rights, and he agreed to speak with

police.   During the ensuing interview, which spanned "fifteen,

maybe twenty minutes," defendant "just talked," without indicating

"any concern or being angered or despondent or anything," and

denied involvement in the offenses.      However, when Detective

Hanover questioned his whereabouts at the time of the crimes,

defendant became "agitated" and responded, "I'm not saying shit to

you.   I wasn't involved in any of that.    I don't know what you're

talking about."    As a result, Hanover concluded "the interview

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wasn't progressing anywhere," Henshaw understood defendant "didn't

have anything else to say," and the two "decided to stop the

interview."

     Shortly thereafter, at approximately 11:00 a.m., defendant

was transported to Charlottesville police headquarters and

immediately served with a warrant charging a grand larceny in that

jurisdiction.    At 12:22 p.m., Charlottesville Police Sergeant

Hudson advised defendant of his Miranda rights, and, again, he

agreed to an interview.   At the outset of interrogation, Hudson

reminded defendant, "You've been charged with some burglaries in

[Charlottesville] and you've been charged with homicide in

[Albemarle] [C]ounty," adding "[p]art of the opportunity you have

here is to tell us about that."   Hudson cautioned defendant,

"you're in a real serious jam" and "now is the time to get [the

murder] straightened out."   After defendant had responded to

numerous inquiries pertaining to the Albemarle County homicide,

repeatedly denying involvement despite Hudson's accusations to the

contrary, he declared, "I don't want to talk to you no more. . . .

I ain't no damn murderer" and concluded the interview.

     Prior to trial on the instant offenses, defendant moved to

suppress his statements to Sergeant Hudson, contending they were

unconstitutionally obtained following invocation of his right to

remain silent.   Following a related hearing, the court granted the

motion, finding defendant had



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             invoke[d] his right to remain silent at the
             conclusion of the interview with the county
             detective . . . . The county police did
             recognize the defendant's wish to not talk.
             This [c]ourt finds that the police did not
             "scrupulously honor" the right to remain
             silent as [Sergeant] Hudson told the
             defendant that he wished to ask him about
             the county murder after the defendant had
             told county police he had nothing to say,
             which the county police had honored. The
             second interrogation was not limited to
             questions about crimes other than the murder
             charge. Accordingly, this [c]ourt finds
             that . . . any statement obtained by
             Detective Hudson on October 8, 1998 at
             12:22 p.m. and thereafter is suppressed.

The Commonwealth appeals.

                                     II.

        The Commonwealth first contends defendant's comment to the

Albemarle County detectives, "I'm not saying shit . . .," "did

not constitute an unambiguous or clear" assertion of the right

to remain silent.

        "For a confession given during custodial interrogation to

be admissible, the Commonwealth must show that the accused was

apprised of his right to remain silent and that he knowingly,

intelligently, and voluntarily waived that right."         Green, 27

Va. App. at 652, 500 S.E.2d at 838.         Once an accused waives the

right to silence, such waiver "'will be presumed to continue

. . . until the suspect manifests . . . his desire to revoke

it.'"     Id. (citation omitted).    However, "[t]he Virginia Supreme

Court has declared that a clear and unambiguous assertion of the

right to remain silent . . . is necessary before authorities are

                                    - 4 -
required to discontinue an interrogation."        Id.   The test to

ascertain if a suspect invoked the right to silence is an

objective one, Davis v. United States, 512 U.S. 452, 459 (1994),

and the attendant finding by the trial court is "a factual

determination that will not be disturbed on appeal unless

clearly erroneous."     Mills v. Commonwealth, 14 Va. App. 459,

468, 418 S.E.2d 718, 723 (1992) (citations omitted); see also

Green, 27 Va. App. at 651-54, 500 S.E.2d at 838-39 (trial court

not "plainly wrong" in finding no clear and unambiguous

assertion of right to remain silent).

        Here, defendant abruptly and pointedly informed the

Albemarle detectives, "I'm not saying shit to you," and said no

more.    His message was clearly understood by police and resulted

in immediate termination of the interview by police.        Under such

circumstances, the trial court found, as a matter of fact, that

defendant clearly and unambiguously asserted his right to remain

silent, a conclusion supported by the record and not plainly

wrong.

        The Commonwealth's reliance upon Mitchell v. Commonwealth,

30 Va. App. 520, 518 S.E.2d 330 (1999), and Green for a

different result is misplaced.    In Mitchell, the accused, after

stating, "I ain't got shit to say to y'all," "proceeded to

volunteer information" to police.        Id. at 527, 518 S.E.2d at

334.    The accused in Green told investigators "he didn't have

anything more to say . . . [and] if [the detective] thought that

                                 - 5 -
he wanted to confess to some things he didn't do, that [the

detective] might as well buckle up for the long ride," language

clearly dissimilar from the instant record.     27 Va. App. at 651,

500 S.E.2d at 837.

                                III.

     When an accused clearly and unambiguously asserts the right

to remain silent, police must cease interrogation.      Miranda v.

Arizona, 384 U.S. 436, 473-74 (1966).      "[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) (citation omitted) (emphasis

added); Weeks v. Commonwealth, 248 Va. 460, 470, 450 S.E.2d 379,

386 (1994).   "Whether a person's decision to remain silent has

been 'scrupulously honored' requires an independent examination

of the circumstances."    Pugliese v. Commonwealth, 16 Va. App.

82, 88, 428 S.E.2d 16, 21 (1993).      However, "[i]n 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).

     In Weeks, the Virginia Supreme Court adopted the "case by

case approach to determine [if] continued questioning was

appropriate after an initial refusal to answer questions"

suggested by the United States Supreme Court in Mosley.      Weeks,

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248 Va. at 471, 450 S.E.2d at 386.      The Court further approved

and applied the five inquiries mentioned in Mosley as pertinent

to a resolution of the issue.    Id.

          First, 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." Second, whether there was an
          immediate cessation of the initial
          interrogation, and no attempt to persuade
          defendant to reconsider his position.
          Third, whether the police resumed
          questioning "only after the passage of a
          significant period of time." Fourth,
          whether Miranda warnings preceded the second
          questioning. Fifth, whether the second
          interrogation was limited to a crime that
          had not been the subject of the earlier
          interrogation.

Id. (internal citations omitted).

     Here, it is undisputed that defendant was properly advised

of his Miranda rights prior to the initial interview in

Albemarle County and voluntarily executed a related waiver.

However, after briefly discussing the crimes with police,

defendant clearly and unambiguously asserted his right to remain

silent, a decision immediately respected by the Albemarle County

detectives.   Approximately two and one-half hours thereafter,

defendant was transported to Charlottesville, charged with other

offenses, once more advised of his Miranda rights and again

submitted to police interrogation.

     At the inception of the second interview, Charlottesville

Police Sergeant Hudson emphasized the Albemarle County homicide,


                                - 7 -
the seriousness of the crime, the attendant "jam" confronting

defendant and the need to truthfully address the charge.      The

subsequent questioning repeatedly focused on the murder and

related events, circumstances clearly the subject of defendant's

prior assertion of his right to silence.    The trial court

concluded such conduct violated defendant's constitutional right

to remain silent and the related lessons of Miranda.     Applying

the inquiries appropriate to a Weeks and Mosley analysis to the

instant facts, our independent examination of the record

confirms that Charlottesville police did not properly honor

defendant's rights by resuming interrogation with respect to an

offense then subject to his right to silence exercised only

three hours previously.

     Accordingly, we affirm the disputed order and remand to the

trial court for such further proceedings as deemed appropriate.

                                           Affirmed and remanded.




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