                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Beales
Argued at Chesapeake, Virginia


DARRYL TYRONE DOZIER, JR.
                                                                MEMORANDUM OPINION * BY
v.      Record No. 0812-07-1                                    JUDGE RANDOLPH A. BEALES
                                                                       JULY 15, 2008
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               A. Joseph Canada, Jr., Judge

                  (Duncan R. St. Clair III; St. Clair & Rosenblum, on brief), for
                  appellant. Appellant submitting on brief.

                  Rosemary V. Bourne, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        A jury convicted Darryl Tyrone Dozier, Jr. (appellant) of possession of cocaine. 1 On

appeal, he argues that the trial court erred when it denied his motion to suppress a recorded

statement and erred in finding the evidence was sufficient to convict him of possession of

cocaine. After considering appellant’s arguments, we affirm the conviction and remand for

correction of a clerical error in the final order.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
           The final order lists appellant’s conviction as “Manufacture, Sell, Distribute or Possess
a Controlled Substance with Intent to Manufacture, Sell or Distribute,” the crime for which he
was originally indicted. However, the jury clearly convicted appellant of the lesser-included
offense of “Simple Possession of a Controlled Substance.” Therefore, this case is remanded to
the trial court solely to correct this clerical error in the final order. See Code § 8.01-428. The
jury sentenced appellant for a simple possession conviction.
         The final order also lists two other convictions, “Felony Failure to Appear” and “Drive
on Suspended or Revoked Operator’s License.” These convictions are not before us in this
appeal and are not discussed herein.
                                  I. MOTION TO SUPPRESS 2

       On June 21, 2006, Detective Sean Coerse drove to the Atlantis Apartments in Virginia

Beach, looking for appellant. Detective Coerse saw appellant get into a parked Mitsubishi

Diamante, back the car out, and drive past the detective, who was going in the opposite direction.

After he passed the detective, appellant immediately made a left turn into another parking lot,

parked, got out of his car, and disappeared from the detective’s sight.

       The police eventually found and arrested appellant on unrelated charges. During a search

of the Diamante, Detective Coerse found a plastic bag containing four pieces of crack cocaine

and several items with appellant’s name on them. No one else’s belongings were in the car.

       Detective Coerse took appellant to the police station. At trial, appellant stipulated that

the detective “properly Mirandized” him 3 and “that lawfully a waiver and consent to be

interviewed took place.” They began talking in an interview room where their conversation was

recorded via a video camera. Appellant initially denied using or selling cocaine. He claimed

Kamesha Caldwell owned the Diamante. Eventually, the following conversation occurred:

                [Detective:] You don’t want to talk about this stuff anymore?

                [Appellant:] No, man.

                [Detective:] Okay.

                [Appellant:] I’ll just talk to my grandma and let her handle the
                situation.

                [Detective:] All right. You know what’s going to happen? I’m
                going to serve the indictment – the felony indictments on you, and


       2
          The Commonwealth argues that appellant waived this argument during the hearing on
the motion to strike. After reviewing the record, we find the Commonwealth misinterpreted a
statement that appellant’s counsel made during the hearing. Appellant did not concede that the
trial court was correct when it denied his motion to strike. Therefore, appellant did not waive his
right to appeal the trial court’s ruling on his motion to suppress.
       3
           See generally Miranda v. Arizona, 384 U.S. 436 (1966).

                                                -2-
               then I’m going to charge you with possession with intent to
               distribute cocaine. I’m going to charge you with driving on a –

               [Appellant:] I didn’t have no –

               [Detective:] -- suspended license.

               [Appellant:] I didn’t have no – I won’t driving.

               [Detective:] (Inaudible.) You weren’t driving?

               [Appellant:] No. You didn’t pull me over when I was driving.

At this point, Detective Coerse explained that he would testify at trial that he saw appellant

driving the car. Appellant asked why the officer did not stop him while he was driving, and the

detective answered that he was in an unmarked car and wearing civilian clothes, so he felt unable

to stop appellant. The detective then attempted to determine if appellant wanted to continue

talking or to go before the magistrate.

               [Detective:] Okay. So, you know, if – like I said, if you don’t
               want to talk about it, what’s going to happen is I’m going to seize
               the car, I’m going to charge you with an additional distribution of
               cocaine, and we’ll take you over there and we’ll go from there.

               [Appellant:] Okay. Yes, sir. Whatever you say, sir. I can’t argue
               with you, man.

               [Detective:] I don’t want to argue with you.

               [Appellant:] I just want to go ahead and go on (inaudible).

               [Detective:] You know, my thing is is I just think you were – I
               think you happened to be present during the murder and not -- not
               the shooter.

               [Appellant:] Yeah. You’re saying, Go on with my business; but I
               just want – you do understand (inaudible).

               [Appellant:] Yeah. I’m going to jail right now. That’s why I’m
               saying, let me go ahead to jail, man, whatever is going on. All
               right. Whatever is going on. I already know what’s right. Know
               what I mean? I know I ain’t in the wrong, so I want to go on and
               get everything right so – you sneaky, man.



                                                 -3-
       Shortly after the above-quoted conversation, appellant admitted that he sold drugs on

occasion. He also asked to make a phone call, which he did, using the detective’s cell phone.

Appellant was left alone in the interview room. He called Holly, one of his girlfriends.

Appellant’s side of the conversation was recorded by the video camera, and Detective Coerse

also overheard it from an observation room. Appellant told Holly that the car was his. He also

said, as described by Detective Coerse, “if he had known the police were looking for him, he

wouldn’t have been carrying today.”

       Prior to trial, appellant filed a motion to suppress his statements to the detective, based on

his invocation of his Fifth Amendment right to remain silent. The video recording was shown to

the court. The trial court found appellant had invoked his right to remain silent, but then

continued talking to the officers. The court concluded, therefore, it was not a clear invocation

and denied appellant’s motion.

       When considering the denial of a motion to suppress based on an alleged Fifth

Amendment violation, this Court reviews “the trial court’s findings of historical fact only for

‘clear error,’ but” reviews “de novo the trial court’s application of defined legal standards to the

particular facts.” Watts v. Commonwealth, 38 Va. App. 206, 213, 562 S.E.2d 699, 703 (2002);

see also Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698 (2002). The facts

here are not in controversy, only the application of the law to those facts is in dispute.

       Appellant initially said that he did not want to talk to the detective about “this stuff”

anymore. 4 At that point, Detective Coerse stopped asking appellant questions and discussing the

events of that day. He instead began to explain the booking process. The detective did not ask


       4
         Appellant points to this single statement (his “No, man” response to Detective Coerse’s
question, “You don’t want to talk about this stuff anymore?”) as the moment when he clearly
invoked his right to remain silent. He does not argue that he invoked this right again later in the
discussion.

                                                 -4-
appellant any more questions, but instead simply told appellant that he would now be served with

several indictments charging him with various crimes. Appellant had told the detective

previously that he was not very familiar with the criminal process. Providing information that

explains this process to a suspect is not an interrogation, but is instead a part of booking

procedure. In Watts, 38 Va. App. at 215-16, 562 S.E.2d at 704, this Court explained the “routine

booking question exception” that allows an officer to ask questions after the invocation of the

Miranda rights if those questions are part of the normal process of arresting a suspect. See also

Gates v. Commonwealth, 30 Va. App. 352, 356-57, 516 S.E.2d 731, 733 (1999) (holding

interrogation does not include questions or statements that normally attend the booking process).

       We have noted that, if a suspect invokes his Miranda rights and an officer continues to

ask questions or make statements that are the functional equivalent of questioning by the police,

then those questions or statements are an impermissible continuation of the interrogation. Watts,

38 Va. App. at 214, 562 S.E.2d at 703. “The ‘functional equivalent’ of an interrogation is ‘any

words or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating response

from the suspect.’ [Rhode Island v.] Innis, 446 U.S. [291,] 301 [(1980)] (emphasis added).” Id.

Here, Detective Coerse’s recitation was designed to inform appellant about the process, not to

elicit an incriminating response. The detective had little reason to expect that appellant would

interrupt his description of the charges with a defense. In addition, appellant does not argue that

the detective should have known that appellant would be inclined to interrupt and respond to the

listing of the charges with incriminating information. See Pennsylvania v. Muniz, 496 U.S. 582,

601 (1990) (noting the “functional equivalent” determination of whether the statement was likely

to prompt a response should be viewed from the suspect’s perspective, regardless of the officer’s

actual intentions). The detective’s listing of the charges was not “the functional equivalent of an

                                                -5-
interrogation.” Therefore, when the detective began explaining the booking procedure to

appellant, he was not violating appellant’s right to remain silent.

       As the record shows, appellant then initiated further conversation with the detective.

Appellant interrupted Detective Coerse and claimed he was not driving. Appellant at that point

contradicted his announcement, made seconds earlier, that he no longer wanted to talk about

“this stuff.” Instead, he clearly did want to talk. He argued that he was innocent, claiming he

was not driving. Although appellant said he wanted to discontinue the conversation, he then

contradicted that declaration. Thus, appellant initiated more conversation with the officer.

       After he invokes his right to remain silent, a suspect certainly can initiate a conversation

with an officer that waives the previously invoked right, and the officer who responds to that

initiation does not violate the suspect’s rights by responding.

               [I]t is well settled that even if invoked, the Miranda right to silence
               can “be waived by the suspect if the waiver is made knowingly
               and intelligently.” Jackson v. Commonwealth, 266 Va. 423, 432,
               587 S.E.2d 532, 540 (2003). In fact, in Michigan v. Mosley, 423
               U.S. 96, 102, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), the United
               States Supreme Court expressly acknowledged that “a blanket
               prohibition against the taking of voluntary statements or a
               permanent immunity from further interrogation, regardless of the
               circumstances, would transform the Miranda safeguards into
               wholly irrational obstacles to legitimate police investigative
               activity, and deprive suspects of an opportunity to make informed
               and intelligent assessments of their interests.” (Emphasis added).

Medley v. Commonwealth, 44 Va. App. 19, 35, 602 S.E.2d 411, 418 (2004) (en banc). We must

therefore consider whether appellant’s initiation of the conversation with the officer was done

with the intent to waive his rights.

       Appellant had already heard his rights and indicated that he understood those rights. He

conceded at the pretrial hearing that he understood them and initially waived them. This waiver

at the beginning of the interrogation was not in writing. The Constitution does not require that a

waiver be in writing, or even oral. Rather, in North Carolina v. Butler, 441 U.S. 369, 373
                                                -6-
(1979), the Supreme Court found it constitutionally sufficient if “waiver can be clearly inferred

from the actions and words of the person interrogated.” See Medley, 44 Va. App. at 36, 602

S.E.2d at 418-19. Therefore, the lack of an explicit statement that appellant again waived his

right to remain silent does not control our decision here.

        In Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the Supreme Court found that

Bradshaw, who had clearly requested an attorney, initiated further dialogue with the police when

he then asked, “‘Well, what is going to happen to me now?’” The Supreme Court explained that,

while some questions may not indicate a desire to continue the interrogation, if the suspect’s

statement or question “evinced a willingness and a desire for a generalized discussion about the

investigation,” then the suspect’s statement to the officer can properly reinitiate an interrogation.

Id. at 1045-46. 5

        We find the analysis in Bradshaw, although discussing a different Fifth Amendment

right, is applicable here. Appellant began talking about the crime immediately after saying he

wanted to stop the conversation. He pled his innocence. He said he was not driving. When the

detective rephrased his statement, appellant continued his dispute with the detective and said,

“No. You didn’t pull me over when I was driving.” Appellant and the detective then began to

discuss the events at Atlantis Apartments. Appellant, on his own initiative, continued the

discussion, controlling the subject of the discussion. See Mosley, 423 U.S. at 103-04 (“Through

the exercise of his option to terminate questioning [a suspect] can control the time at which

questioning occurs, the subjects discussed, and the duration of the interrogation.”). He opted to


        5
         Although Bradshaw was a plurality opinion, the dissenting opinion disagreed with the
majority on the application of the test to determine waiver, arguing that the “communication or
dialogue [must be] about the subject matter of the criminal investigation.” Bradshaw, 462 U.S.
at 1053 (dissenting opinion); see Correll v. Commonwealth, 232 Va. 454, 462-63, 352 S.E.2d
352, 356-57 (1987). Here, appellant’s comments were directly related to the investigation.


                                                -7-
continue the interrogation, even though he had just claimed only moments earlier that he wanted

to end it. The record contains no evidence of intimidation, coercion, or deception to elicit

appellant’s statement in defense of his innocence. See Medley, 44 Va. App. at 37, 602 S.E.2d at

419.

       In some cases, an initiation of conversation by a suspect clearly does not waive his rights,

such as where he asks for a glass of water. Bradshaw, 462 U.S. at 1046. Here, however,

appellant’s statements directly addressed his behavior at the time of his arrest and he questioned

the evidence against him. Thus, his initiation related “generally to the investigation” and was not

a “necessary inquiry arising out of the incidents of the custodial relationship.” Id. Appellant

evidenced his desire to reinitiate the interrogation.

       Although appellant was not re-Mirandized and did not explicitly state that he no longer

wished to invoke his right to remain silent, the manner and context in which appellant initiated

the conversation proved he knew his rights and intended to waive them. As the United States

Supreme Court explained in Wyrick v. Fields, 459 U.S. 42, 48-49 (1982), where the Court

criticized an Eight Circuit ruling that required “reminding” a suspect of his rights:

               The Eighth Circuit’s rule certainly finds no support in Edwards,
               which emphasizes that the totality of the circumstances, including
               the fact that the suspect initiated the questioning, is controlling.
               Nor is the rule logical; the questions put to Fields after the
               [polygraph] examination would not have caused him to forget the
               rights of which he had been advised and which he had understood
               moments before.

         The detective here faced a situation very similar to the situation faced by the officers in

Medley. Medley stated that he did not want to waive his rights, but then he continued to express

his desire to talk to the officers. The officers continued to talk to Medley, trying to determine

which of Medley’s statements to believe – that he wanted to talk or that he wanted to invoke his

rights. Here, Detective Coerse faced the same problem once appellant interrupted him.


                                                 -8-
Although he said that he did not want to talk about “this stuff” anymore, appellant then clearly

wanted to explain his defense to the detective. He interrupted the detective to claim that he was

not driving the car in which the narcotics were found. At this point, appellant waived his right to

remain silent, a right recently explained to him and that he recently invoked. Although the

detective tried to end the interrogation, appellant wanted to discuss the crimes with which he was

charged and the evidence against him.

       Based on the totality of the circumstances, we find the trial court did not err in denying

appellant’s motion to suppress. Although appellant made a statement that invoked his right to

remain silent, he then immediately contradicted his declaration by arguing for his innocence with

the officer, reinitiating the discussion with the detective and waiving his right to remain silent.

See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (“Miranda gives the defendant a right to

choose between speech and silence, and [the defendant] chose to speak.”). The detective did not

violate appellant’s Fifth Amendment rights. See Mitchell v. Commonwealth, 30 Va. App. 520,

527, 518 S.E.2d 330, 333 (1999).

                                        II. SUFFICIENCY

       Appellant claims that, even if the motion to suppress was properly denied, the evidence

was insufficient to convict him of possession of the cocaine found in the car. We find appellant

did not preserve this argument.

       While appellant made a motion to strike the evidence at the close of the Commonwealth’s

case, he did not renew this motion after he testified nor did he make a motion to set aside the

verdict after the jury returned with its decision. Therefore, he did not preserve his sufficiency

argument for appeal. See McQuinn v. Commonwealth, 20 Va. App. 753, 755-57, 460 S.E.2d 624,

625-26 (1995) (en banc) (concluding, “If the accused elects not to stand on his motion and

presents evidence, he thereby creates a new context in which the court, if called upon to do so,

                                                -9-
must judge the sufficiency of the evidence. Thus, the original motion to strike is no longer

applicable because it addresses a superseded context.”).

                                          CONCLUSION

        We find the trial court did not err in denying appellant’s motion to strike statements he

made at the police station, and we find he did not preserve the sufficiency argument for appeal.

Therefore, we affirm the possession of cocaine conviction and remand for correction of a clerical

error in the final order.

                                                                           Affirmed and remanded.




                                               - 10 -
Kelsey, J., concurring.

       I fully concur with Judge Beales’s analysis. I write separately only to add that Dozier

waived his argument (and, for the same reason, rendered any error harmless) by taking the stand

at trial and then testifying about the statements he made during and after the police interview.

       Miranda protects “a fundamental trial right.” United States v. Patane, 542 U.S. 630, 641

(2004) (plurality opinion) (citations omitted, emphasis in original). As a result, the “mere failure

to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the

Miranda rule.” Id. “Potential violations occur, if at all, only upon the admission of unwarned

statements into evidence at trial.” Id. This trial right — to exclude from evidence statements

obtained in violation of Miranda — can be waived like any other evidentiary objection.

       Under settled principles, when a defendant “unsuccessfully objects to evidence that he

considers improper and then introduces on his own behalf evidence of the same character, he

waives his earlier objection to the admission of that evidence.” Combs v. Norfolk & W. Ry., 256

Va. 490, 499, 507 S.E.2d 355, 360 (1998). This principle applies to criminal cases no less than

civil cases. See, e.g., Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638

(1970) (where “an accused unsuccessfully objects to evidence” and then “on his own behalf

introduces evidence of the same character, he thereby waives his objection”); Snead v.

Commonwealth, 138 Va. 787, 801-02, 121 S.E. 82, 86 (1924) (recognizing waiver applies where

the objecting party offers “on his own behalf testimony similar to that to which the objection

applies” (emphasis added)); Snarr v. Commonwealth, 131 Va. 814, 818, 109 S.E. 590, 592

(1921) (having “fully related his recollection of all of the circumstances immediately preceding

is arrest,” the defendant “must be held to have waived his original objection to this testimony”). 6



       6
         See generally Ohler v. United States, 529 U.S. 753, 755-56 (2000) (“Generally, a party
introducing evidence cannot complain on appeal that the evidence was erroneously admitted.”);
                                              - 11 -
       Waiver of the challenged evidence occurs when the objecting party “has elicited evidence

dealing with the same subject as part of his own case-in-chief.” Pettus v. Gottfried, 269 Va. 69,

79, 606 S.E.2d 819, 825 (2005). When this occurs, an appellate court “cannot reverse for alleged

error.” Bynum v. Commonwealth, 28 Va. App. 451, 459, 506 S.E.2d 30, 34 (1998) (quoting

Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992)). 7 “Some courts so hold

because the error is harmless, and others because the subsequent introduction of the same

evidence is a waiver of the objection. Whether it be placed upon one ground or the other, the

result is the same.” New York Life Ins. v. Taliaferro, 95 Va. 522, 523, 28 S.E. 879, 879 (1898).

       In sum, Dozier took the stand at trial, waived his Fifth Amendment right not to testify,

and testified about the police interview and his later statements. 8 By doing so, Dozier waived

appellate review of the trial court’s denial of his pretrial suppression motion and likewise

rendered harmless his claim of error on appeal. I would affirm Dozier’s conviction on this

ground in addition to the reasons well stated in Judge Beales’s opinion.




Charles E. Friend, The Law of Evidence in Virginia § 8-4, at 295 (6th ed. 2003) (explaining
waiver principle where “the objecting party introduces the same type of evidence”).
       7
          Moreover, to the extent Dozier’s testimony at trial was inconsistent with his earlier
voluntary statements during the police interview, his interview statements would have thereby
become admissible in the Commonwealth’s rebuttal case as impeachment even if they had been
obtained without Miranda warnings. See Michigan v. Harvey, 494 U.S. 344, 350 (1990) (“We
have already decided that although statements taken in violation of only the prophylactic
Miranda rules may not be used in the prosecution’s case in chief, they are admissible to impeach
conflicting testimony by the defendant.”); United States v. Havens, 446 U.S. 620, 626 (1980);
Oregon v. Hass, 420 U.S. 714, 721-22 (1975); Harris v. New York, 401 U.S. 222, 225-26 (1971).
“It is well established that a criminal defendant’s right to testify does not include the right to
commit perjury,” Lachance v. Erickson, 522 U.S. 262, 266 (1998) — Miranda notwithstanding.
       8
         The waiver analysis applies equally to Dozier’s statements made directly to the police
as well as his statements (overheard by the police) to his girlfriend. Waiver or no waiver,
Dozier’s incriminating statements to his girlfriend would not be governed by Miranda in any
event. Neither the Fifth Amendment nor its Miranda protections apply to voluntary statements
by a suspect to a private individual.

                                               - 12 -
