                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


RAHEEM VAUTER
                                           MEMORANDUM OPINION * BY
v.        Record No. 1062-96-2             JUDGE NELSON T. OVERTON
                                                JULY 29, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Robert W. Duling, Judge
          Robert N. Johnson (Robert N. Johnson, Jr.;
          Robert N. & Anne M. Johnson, Inc., on
          briefs), for appellant.

          Michael T. Judge, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Raheem Vauter appeals his conviction for possession of

cocaine with intent to distribute.   He contends that his

statement to the police should not have been admitted at trial.

We find that his statement was given voluntarily and with

knowledge of his right to remain silent, and we affirm.

     The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, we recite only those facts necessary to the

disposition of this appeal.

     Vauter was stopped at the Richmond bus station by Detective

R. L. Armstead and was found with a plastic bag containing "tan

chunks," later determined to be cocaine.    Vauter was taken to the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
police station and questioned by Detective Stephanie Ruffin.

Detective Ruffin read and filled out a standardized form that

informed Vauter of his Miranda rights and that he was being

interviewed in connection with possession of cocaine.   Vauter

wrote "yes" and initialed that he understood his rights.    Ruffin

then read him the sentence on the bottom of the form stating that

he may voluntarily waive these rights.   Vauter did not sign

beneath the sentence, nor did he make any actions or statements.

 He did not indicate his intention to remain silent, nor did he

indicate a willingness to talk to the police.   He did nothing.
     Ruffin then starting filling out a general information form.

 One of the questions on the form asks what type of drugs was

found on the accused.   Ruffin testified that she called to

Detective Armstead, who was down the hall in another room, to ask

what he had seized.   When she did not hear Armstead's reply, she

asked Vauter what it was, and Vauter said "crack." 1

     Vauter contends that this statement was inadmissible at

trial.   He argues that he had asserted his right to remain

silent, and that the police should not have questioned him

further about the alleged offense.   We disagree.   A clear and

unambiguous assertion of the right to remain silent is necessary


     1
      Vauter gave a slightly different rendition of this incident,

but his version was specifically rejected by the judge as

incredible.



                                 2
before the police are compelled to cease questioning.       See

Midkiff v. Commonwealth, 250 Va. 262, 266-67, 462 S.E.2d 112,

115-16 (1995).   Although a suspect may indicate his desire to

remain silent "in any manner," Miranda v. Arizona, 384 U.S. 436,

473 (1966), "Miranda should not be read so strictly as to require

the police to accept as conclusive any statement, no matter how

ambiguous, as a sign that the suspect desires to cut off

questioning."    Lamb v. Commonwealth, 217 Va. 307, 312, 227 S.E.2d

737, 741 (1976).    Vauter's actions were not a clear and

unambiguous assertion of his right to remain silent.    After

reading his list of rights and initialing that he understood

them, he did nothing.
     Vauter argues on appeal that the fact that he did not sign

the rights waiver form constitutes an assertion of his right to

remain silent.   His argument is unpersuasive.   First, we note

that the standardized form used by the police is poorly drafted

and we question whether Vauter's signature on the form would

constitute a valid waiver of his Miranda rights.    The sentence

over the signature line read in entirety, "You may voluntarily

waive or give up the above rights that have been explained to you

and make a statement if you so desire."   A signature under this

sentence does not necessarily indicate that the undersigned does

waive his rights.   In fact, the significance of a signature is

unclear.   In the same manner, the lack of a signature has little

significance.




                                  3
     Secondly, assuming arguendo that Vauter intended to have his

lack of a signature signify a desire to remain silent, this

action does not meet the standard for a clear and unambiguous

assertion.   An assertion is by definition and common

understanding a positive act.      Vauter did not even positively

refuse to sign the form:      he did nothing.   His inaction, his mere

silence, did not invoke his right to remain silent.       See Midkiff,

250 Va. at 267, 462 S.E.2d at 115 (finding that the statement "I

don't got to answer that" does not indicate a clear and

unambiguous desire to remain silent); see also Davis v. United
States, 512 U.S. 452, 461 (1994) (holding that "Maybe I should

talk to a lawyer" was not an invocation of the right to counsel);

Mueller v. Commonwealth, 244 Va. 386, 396, 422 S.E.2d 380, 387

(1992) (holding that "Do you think I need an attorney here?" fell

short of being a clear assertion of the right to counsel).

Because Vauter did not make any clear and unambiguous assertions

of his right to remain silent, the police were free to continue
                   2
questioning him.       Thus, Detective Ruffin was not prohibited from

asking Vauter questions after having informed him of his rights

and having ascertained that he understood those rights.      Any

answer he gave subsequently may be used against him at trial.

     Accordingly, we affirm the conviction.


     2
      This is true even if, as here, the police do not wish to take

a statement at that time.



                                    4
    Affirmed.




5
Benton, J., dissenting.

     I would hold that the trial judge erred in admitting into

evidence Raheem Vauter's answer to Detective Ruffin's question.

Accordingly, I dissent.

     "Absent a knowing and intelligent waiver of the Fifth

Amendment right against self-incrimination and the Sixth

Amendment right to the assistance of legal counsel, a confession

made by a suspect during in-custody interrogation is inadmissible

in evidence against him."     Harrison v. Commonwealth, 244 Va. 576,

580, 423 S.E.2d 160, 162 (1992) (citing Miranda v. Arizona, 384

U.S. 436 (1966)).   "The Commonwealth bears the burden of proving

by a preponderance of the evidence that the accused waived his

Miranda rights."    Mills v. Commonwealth, 14 Va. App. 459, 468,

418 S.E.2d 718, 722 (1992) (citing Colorado v. Connelly, 479 U.S.

157, 168 (1986)).   "Courts indulge every reasonable presumption

against a waiver of fundamental constitutional rights."     White v.

Commonwealth, 214 Va. 559, 560, 203 S.E.2d 443, 444 (1974).     "[A]

valid waiver will not be presumed simply from the silence of the

accused after warnings are given or simply from the fact that a

confession was in fact eventually obtained."     Miranda, 384 U.S.

at 475.

     Detective Ruffin testified that she read each statement on

the Miranda form to Vauter.    She testified that she "asked him if

he understood his rights; and if he did so, could he write 'yes'

and place his initials beside it."     Ruffin testified that Vauter



                                   6
wrote "yes" and placed his initials next to the word "yes."

Ruffin then read the rest of the form, which stated that Vauter

may waive his rights and make a statement.      In response, Vauter

"didn't motion or do anything."    Ruffin testified that she "read

the statement verbatim, and he did nothing.      He didn't say no; he

didn't say yes.   He did nothing."     Ruffin testified that she did

not attempt to take a statement from Vauter because Vauter did

not indicate that he was willing to make a statement.      Ruffin

then proceeded to ask Vauter routine questions "for the arrest

sheet."    During the course of completing the form, Ruffin asked

another officer what substance they had seized from Vauter.

Ruffin concluded that the other officer did not hear her.      Ruffin

then asked Vauter "what was it?"       In response, Vauter stated

"crack."
     Based on this record and the presumption against a waiver of

constitutional rights, see White, 214 Va. at 560, 203 S.E.2d at

444, I would hold that the Commonwealth failed to prove that

Vauter waived his right to remain silent.      The evidence proved

that upon telling Vauter of the option to waive that right,

Vauter remained silent.    Cf. Harrison, 244 Va. at 582, 423 S.E.2d

at 164 (assuming without deciding that an accused's silence was

"an implicit invocation of" the accused's Miranda rights).

Indeed, Detective Ruffin testified that she understood by

Vauter's response that Vauter did not desire to make a statement.

Given these circumstances, I would hold that the Commonwealth




                                   7
has failed to prove that Vauter waived his right to remain

silent.

     The majority reasons that Vauter failed to assert his right

to remain silent in a clear and unambiguous fashion.    To support

its position, the majority cites cases in which the attempted

assertion of Miranda rights followed a prior Miranda waiver and

interrogation.     See Davis v. United States, 512 U.S. 452, 455,

461 (1994) ("We therefore hold that, after a knowing and

voluntary waiver of the Miranda rights, law enforcement officers
may continue questioning until and unless the suspect clearly

requests an attorney."); Midkiff v. Commonwealth, 250 Va. 262,

266, 462 S.E.2d 112, 115 (1995); Mueller v. Commonwealth, 244 Va.

386, 394, 422 S.E.2d 380, 385 (1992); Lamb v. Commonwealth, 217

Va. 307, 311-12, 227 S.E.2d 737, 740-41 (1976).    The rule in

those cases, that a clear and unequivocal assertion of Miranda

rights is required before the police are required to cease

questioning, only applies when the police have already been

questioning the accused pursuant to a valid Miranda waiver.
Indeed, in Davis, the United States Supreme Court stated the

following:
             A suspect who knowingly and voluntarily
             waives his right to counsel after having that
             right explained to him has indicated his
             willingness to deal with the police
             unassisted. Although Edwards provides an
             additional protection--if a suspect
             subsequently requests an attorney,
             questioning must cease--it is one that must
             be affirmatively invoked by the suspect.




                                   8
Davis, 512 U.S. at 460-61; see also id. at 470-71 (Souter, J.,

concurring) (describing the Davis decision as "drawing a

distinction between initial waivers of Miranda rights and

subsequent decisions to reinvoke them").   When the accused has

not waived his Miranda rights, however, he retains those rights

until he knowingly and voluntarily waives them and any statement

he makes during an interrogation is inadmissible.

     Because the Commonwealth failed to prove that Vauter had

waived his Miranda rights, the trial judge erred in admitting
into evidence Vauter's answer to Detective Ruffin's question.

Accordingly, I dissent.




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